The claimant newly qualified teacher brought claims for disability discrimination against her employer, the first respondent school, and two named individual respondents, who were employees of the school. The employment tribunal found that the school was liable under section 109 of the Equality Act 2010 for two acts of disability discrimination by the individual respondents. The school did not run any defence under section 109(4) that it had taken all reasonable steps to prevent the individual respondents from committing the acts, with the consequence that the acts were treated as done by the school for the purpose of liability of the “employer” under section 39 of the 2010 Act. The tribunal dismissed separate claims against the individual respondents under section 110 of the Act. The claimant appealed, inter alia, on the ground that the tribunal erred in holding that the individual respondents were not liable under section 110.
On the appeal—
Held, appeal allowed. As a matter of construction, section 110 of the Equality Act 2010 did not expressly give a tribunal a discretion to find an employee or agent had not contravened the section, nor did a tribunal have an implicit discretion to make such a finding in circumstances where the employer itself was liable under section 109, for example because it had not pleaded, run or established the defence in section 109(4). Further, it was incorrect to say that section 110 was ancillary to section 109: both sections were routes to findings of primary contraventions of the Act, neither was subsidiary to the other, and each fell to be applied in accordance with its own terminology. The history to section 110 also counted against a narrow construction of the circumstances in which a contravention of that provision would arise and supported a legislative intention that the section should have a broad reach. There was nothing in the purpose of the Act, which was brought in to remedy a great social and individual wrong, to support reading in a discretion to section 110 or a qualification that it only applied to “ancillary” liability where the employer was not found to be liable under section 109. The context of section 110 and the provisions in the Act on enforcement also counted against any implicit discretion in section 110. Finally, there were practical reasons for not conferring a discretion on the tribunal to decline to find a contravention under section 110 in circumstances where the employer was liable under section 109, namely to cover circumstances where the employer went into liquidation, leaving the claimant with no effective remedy for the wrong. For all those reasons, there was no discretion on the part of a tribunal to refuse to make a finding of a contravention of section 110 so long as the conditions for liability under that section were met. For that purpose, it was irrelevant whether or not the employer ran the section 109(4) defence, succeeded in that defence, failed in that defence, conceded that it had no defence, or was itself found to be liable under section 109. On the facts, the tribunal incorrectly construed section 110 and so erred in holding that the individual respondents were not liable for the acts of discrimination under that section. Properly construing section 110, the only conclusions were that there were contraventions of section 110 by both individual respondents (paras 29–37, 38–40, 60).
Courtney Step-Marsden (instructed by Didlaw Ltd) for the claimant.
Gillian Crew (instructed by Lyons Davidson, Bristol) for the respondents.