This case serves as a useful warning that both individuals and employers can be held liable in cases of discrimination.
The Sex Discrimination Act 1975 (section 42) makes provision for individuals to be liable if they have knowingly aided another person in an act of discrimination. Here, the EAT ruled that the manager’s behaviour was so bad that she was made personally responsible (along with the company) for 100% of the £25,000 award for injury to feelings.
Ms Miles was the manager of a hairdressing salon where Ms Gilbank worked as a senior hair designer. She was also the director and majority shareholder of the salon.
When Gilbank informed Miles that she was pregnant, she claimed she was subjected to discrimination, bullying and a lack of concern for the welfare of her unborn child. Gilbank was not allowed to alter her working day to accommodate the fact that she was pregnant. This meant she was not allowed to take the breaks that had been advised by her doctor, and she had to continue to handle substances that posed a health risk to the baby. Gilbank was also only paid for half of her statutory maternity period.
In finding in favour of Gilbank, the Court of Appeal held that Miles had fostered an “inhumane and sustained campaign of bullying and discrimination” which had been “targeted, deliberate, repeated and consciously inflicted”.
Although unusual, the courts are prepared to find an individual liable if they have aided a company’s discriminatory acts. In this case, the fact that Miles was also the owner of the business, which had subsequently gone into liquidation, did not help her. By fostering a culture of bullying and by joining in herself, Miles was aiding the unlawful discrimination.
The tribunal will award high levels of compensation for injury to feelings even if the discrimination occurs for a relatively short period of time (ie, throughout pregnancy).
What you should do
Make employees aware that they could be personally liable for their actions.
Ensure that a sufficient risk assessment is carried out to highlight and remove any potential risk to the health of the pregnant employee or her child.
Attend the hearing. The tribunal was critical of the fact Miles did not attend the hearing to give evidence and she did not help herself by failing to appear.
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