Personal liability for discrimination: two teachers' misguided attempts to deal with colleague's absence land them in legal hot water

Under the Equality Act 2010, employers are liable for anything done by a member of their staff in the course of their employment unless they have taken all reasonable steps to prevent it. Most claimants don't bother adding named individuals as separate respondents unless they're worried that their employer may not remain solvent and/or they want the people responsible for their distress to really suffer.

In Baldwin v Cleves School (1), Hodges (2) and Miller (3) the EAT had to decide whether a head teacher and a teacher appointed to mentor the claimant were personally liable for two acts of discrimination.

Facts

Ms Baldwin was appointed by the school as a NQT. She'd had a number of medical problems in the past, but ticked the box to say she wasn't disabled on the recruitment forms because they hadn't caused her any problems for some time. She did, however, disclose that she had fibromyalgia (a chronic, long-lasting disorder that causes pain and tenderness throughout the body, as well as fatigue and trouble sleeping). 

During her first term, she had a number of days off sick due to unrelated medical issues which were being investigated by medical professionals. As a result, the school suspected that Ms Baldwin had not been completely honest about her health when she accepted the post.

The school appointed Ms Miller to mentor Ms Baldwin to help her achieve the standards she needed. Ms Baldwin had not had all of her assessments marked for her PGCE and Ms Miller contacted her supervisor to find out whether she had met teacher standards and to understand what support she needed.The response was somewhat limited: all Ms Miller discovered what that Ms Baldwin had been “very unwell”. Ms Miller asked for more information about how many days she had been absent and the reasons for this. The supervisor refused to elaborate and copied Ms Baldwin into her response.

At the end of the first term the school informed Ms Baldwin that she had not met the appropriate NQT standards and failed her. The report, written by the head teacher, Mr Hodges referred to her high rate of absence and raised concerns about professional abilities and conduct. He accused her of not acting with “integrity” at all times. 

Ms Baldwin made a number of claims against the school and against Miller and Hodges personally.

Decision of the tribunal

The tribunal concluded that both of the incidents set out above amounted to disability discrimination. Ms Miller's attempts to obtain information about Ms Balwin was an act of direct discrimination because the school would not have treated someone else who had suffered ill-health at the start of their PGCE in the same way. The email was sent because of Ms Baldwin's perceived disability and the school's suspicion that she was hiding information from them.

The tribunal accepted that the school was justified in failing Ms Baldwin, but said referring to her lack of integrity was an unfavourable remark related to her disability. There was no evidence to support the school's allegation that she lacked integrity, nor had it raised this with her. The tribunal said that if the school was suspicious about the reasons why Ms Balwin needed time off it should have investigated these with her. 

The tribunal, however, refused to find Miller and Hodges liable for the discrimination on the basis that their actions were a “misguided attempt to address a complex situation”. Ms Baldwin appealed.

Decision of the EAT

The EAT said that both teachers were liable, and the case will now go back to the tribunal to determine compensation. 

The tribunal had made a mistake in interpreting the law. Section 110 of the Equality Act says that employees are liable for acts of discrimination if they have done something which is treated as having been done by their employer. And that remained the case, even if the employer was able to wriggle out of its responsibility by demonstrating that it had taken all reasonable steps to prevent the staff in question from discriminating against other people.

The EAT accepted that its decision was harsh, but said that the legislation was clear on this point. 

Will the teachers have to pay compensation to the claimant?

In this case, that's unlikely because the school has accepted responsibility for paying compensation to Ms Baldwin.

But, a tribunal does have discretion about which party or parties should pay compensation to the successful victim of discrimination. It can, for example, apportion liability between respondents (split awards) or order that the parties are jointly responsible for the compensation, which means that the successful claimant can obtain the full amount from a single respondent or several respondents.   

Training

Your staff need to know that they can be named as individual respondents in a discrimination claim, and may have to pay compensation to a successful claimant. Does the training you roll out to your staff include this? If it doesn't it would be sensible to revisit it.

We have a comprehensive suite of training modules. You can choose from online modules or bespoke training which can be delivered remotely or face to face. Please speak to Jenny Arrowsmith or Gordon Rodham for more information.

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