Weekly Employment Update - 13th October 2011

Welcome to Ashfords' Weekly Employment Update, where each week we consider recent developments in Employment and HR issues. This week we are looking at a recent decision of the Employment Appeal Tribunal ("EAT") - Bungay v All Saints Haque Centre.

Two board members of the Centre appealed a decision of the Tribunal that found them to have discriminated against two employees on the grounds of their religion.

Under employment equality regulations an employer will be liable for the acts of its employees unless they can show they took all reasonable steps to prevent an employee from carrying out those actions. Employers will also be liable for the acts of "agents" who act with their authority. The board members were no longer employees of the centre but they remained board members, and the EAT therefore held them to be "agents" of the Centre.  The EAT stated that they did not have to be "authorised" by the Centre to discriminate but just to be exercising authority conferred by the Centre.  The two board members were held to be agents of the centre because they had the authority to carry out the disciplinary procedure and generally manage the Centre's business; therefore the Centre and the two board members were held to be liable to pay compensation to the employees for injury to feelings.

The board members also unsuccessfully argued that they should not be held "jointly and severally liable" with the Centre for the damages awarded to the employees which allows the employee to seek all the damages from either of the board members or the centre.  This had important consequences for the two board members as the Centre had since gone into liquidation and was unlikely to have any funds from which to pay their share of the compensation, meaning the two employers would end up paying more.

Aggravated damages may be awarded in discrimination claims where the respondent, in this case the two board members, have acted in a "high-handed, malicious, insulting or oppressive manner" and this has aggravated the employees injury.  The EAT held that the post employment conduct of the two board members and the way they conducted themselves in their defence could be taken into account when quantifying the award for aggravated damages.

This case is one of a number that have recently reached the high courts and serves as a reminder of the challenges faced in interpreting the law on religion and belief.

Ashfords LLP is Authorised and Regulated by the Solicitors Regulation Authority. The information in this note is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.