A recent Court of Appeal verdict underlines that when it comes to discrimination at work, it’s not just employers who may be at risk of being ordered to pay compensation.
Employees beware! Compensation awarded in discrimination claims can be made against individual employees as well as the employer
Topic: Miles v Gilbank
Where: Court of Appeal
When: May 2006
What happened:
In the recent case of Miles v Gilbank, the Court of Appeal upheld a tribunal's decision to make a hair salon manager personally liable for the £25,000 compensation awarded to her colleague for injury to feelings.
Under the Sex Discrimination Act 1975, every employer has a duty not to subject its employees to a detriment on the basis of their sex, which includes detriment on the grounds of pregnancy. Where an employee is guilty of an unlawful act in the course of his or her employment, the employer will normally be found to be liable. However, the Sex Discrimination Act does provide that an individual may be personally liable if they carry out discriminatory acts or aid another to do so. This also applies to other forms of discrimination under the relevant statutes, which prohibit discrimination on the grounds of race, disability, sexual orientation, religion or belief, and as of 1 October 2006, age.
In Miles v Gilbank, the claimant, Miss Gilbank, worked as a senior hairdresser and trainee manager. The salon was run by Ms Miles, with whom Miss Gilbank had a good working relationship. However, this relationship changed completely when Miss Gilbank announced she was pregnant. No risk assessment was carried out by the salon and no allowances were made for the fact that she was pregnant. Miss Gilbank was still required to use bleach, which she feared could harm her unborn child and was refused time off to go to hospital when she believed she had suffered a miscarriage. Throughout her pregnancy, she was ignored and subjected to unsympathetic comments. The tribunal found that there had been an "inhumane and sustained campaign of bullying and discrimination" by Ms Miles and the other managers.
On the basis of the extreme circumstances of this case, the tribunal found that Ms Miles had "consciously fostered and encouraged a discriminatory culture" which had targeted Miss Gilbank and had "not only demonstrated a total lack of concern for the welfare of Miss Gilbank herself, but a callous disregard for the life of her unborn child." Ms Miles had made it clear to the other managers that their treatment of Miss Gilbank was acceptable, both in the manner in which she treated her and the way in which she dealt with Miss Gilbank's complaints about their behaviour.
The tribunal therefore awarded the maximum possible amount of £25,000 for injury to feelings to reflect the "distress and suffering including anxiety and distress at being prevented from doing everything needed to protect the child." This award was made jointly and severally against the salon and Ms Miles – meaning that Miss Gilbank was entitled to pursue Ms Miles alone for the whole amount. Ms Miles appealed to both the Employment Appeal Tribunal and the Court of Appeal and lost on both occasions.
Although this case had fairly extreme facts in that they prevented the claimant from protecting her unborn child, it does highlight the fact that managers may be found personally liable for a campaign of discrimination even where they are not the sole culprits. Injury to feelings awards can be anywhere between £500 and £25,000 depending on the seriousness of the discrimination.
Why this matters:
Employers would be wise to carry out regular training in respect of equal opportunities, reminding employees of the importance of a work environment free from unlawful discrimination harassment, bullying or victimisation on the grounds of sex, marital status, sexual orientation, disability, race, colour, religion or ethnic origin. As part of this training, the case of Miles and Gilbank should be a salutary warning to all employees, particularly managers and senior employees, that unless they avoid harassing or discriminating against their colleagues or are not seen to personally foster a discrimination-free working environment, they could be held personally liable.
Katherine Medd
Trainee Solicitor
Osborne Clarke London
Katherine.medd@osborneclarke.com
