Way and another v Crouch, EAT,
3 June 2005
Following her dismissal, Ms Way brought a sex discrimination claim against both the company and against the managing director, personally. The tribunal upheld her complaints against both parties and determined that the real reason for her dismissal was related to a former affair with the MD. Both the company and the MD were, therefore, found liable to pay compensation, but the tribunal ruled this liability was joint and several – ie, Way could pursue either one for the whole sum, leaving that party to claim back a contribution from the other.
The respondents unsuccessfully appealed. The Employment Appeal Tribunal (EAT), however, confirmed that, in sex discrimination cases, tribunals are entitled to make an award on a joint and several basis. It also went on to issue some guidelines suggesting that such awards should be the exception rather than the rule and that liability to pay compensation should be apportioned between respondents according to their relative culpability.
In practice, this case highlights the careful consideration claimants with harassment-type claims must give before joining a harassing colleague to a claim. If they do, they risk a finding that the (possibly impecunious) colleague must pay the lion’s share of the compensation because they bear the greater responsibility for the harassment. If they don’t, they potentially risk losing a claim altogether if the employer has a good defence.