with the employee unless the employer can show that he
took all reasonable steps to prevent the employee from
discriminating. If he can do this, only the employee is
responsible.
Individual employees who believe that they have been
discriminated against may make a complaint to an
employment tribunal within three months of the act
complained of. It is then the duty of a conciliation officer
to see whether the complaint can be settled without
going to a tribunal. If, however, the tribunal hears the
complaint, it may make an order declaring the rights
of the employer and the employee in regard to the com-
plaint, the intention being that both parties will abide by
the order for the future.
The tribunal may also give the employee monetary
compensation, and there is no limit on the award, and
may additionally recommend that the employer take,
within a specified period, action appearing to the tribunal
to be practicable for the purpose of obviating or reduc-
ing discrimination.
Discrimination: employee jointly and
severally liable
As already noted, an unlawful act (other than a criminal
offence) under any of the relevant discrimination legis-
lation committed by an employee in the course of
employment is treated as having also been done by the
employer and judgment against the employer is the one
which is normally paid by the employer. The employer
has a defence if all reasonably practicable steps were
taken to prevent the employee from doing the discrim-
inatory act. The Employment Appeal Tribunal has, how-
ever, decided that a manager who consciously fostered
and encouraged a discriminatory culture at work by beha-
viour and example against a pregnant employee was jointly
and severally liable together with the employer for
damages of £25,050. These were awarded to Ms Janine
Gilbank for discrimination she had suffered while work-
ing for the employer, Quality Hairdressing Ltd, trading as
Hollywood. The appeal was against the decision to award
joint and several liability (see Milesv Gilbank(2005)).
Ms Gilbank had worked for Hollywood as senior hair
designer and trainee manager when she became preg-
nant. Once she informed Ms Miles, her line manager, of
that fact, the atmosphere at work changed from being
happy and friendly to a situation where Ms Gilbank was
subjected to a catalogue of behaviour that was vicious
and inhuman and involved a sustained campaign of
bullying and discrimination by Ms Miles and her col-
leagues. The employment tribunal stated that the treat-
ment involved a callous disregard or concern for the
welfare of Ms Gilbank and her unborn child. They made
an award of £25,020 to Ms Gilbank and directed that
Ms Miles should be jointly and severally liable with
Hollywood for the damages. Ms Miles’s appeal to the
EAT was dismissed.
Comment. The form of the award means that Ms Miles
could be required to pay the whole of the damages with
a contribution against Hollywood or Hollywood could
be required to pay the damages with a contribution
against Ms Miles. In addition, there is a joint liability.
The decision is a warning order to employees who engage
in discriminatory acts. It all depends upon the means of
the parties, of course, but many senior employees would
have sufficient saleable assets to pay the kind of sum at
issue in this case and be left to seek a contribution of such
amount as the court may decide from the employer.
Appeal note. Maxine Miles made an appeal to the Court
of Appeal but it was dismissed. The EAT and the em-
ployment tribunal had on the facts found come to the
right conclusions.Burden of proof
By the insertion of a new s 63A into the Sex Dis-
crimination Act 1975 a ‘shifting’ burden of proof is
introduced into sex discrimination claims. By reason of
separate regulations, the same burden of proof has been
applied to race, religion or belief, and sexual orientation
claims. In essence, the new section states that where an
applicant has proved facts from which a tribunal could
conclude that the employer had committed an unlawful
act of discrimination the tribunal must uphold the com-
plaint unless the employer proves that he or she did
not commit the relevant act. Therefore, while there is a
burden of proof on the employee to begin with, it can
shift to the employer in the circumstances outlined by
the section.
The matter was raised in the following case.Part 4Business resources
534
Bartonv Investec Henderson Crosswaite
Securities Ltd(2003)
B had worked as a media analyst for the defendants for
over ten years. She brought proceedings alleging sex
discrimination and for equal pay. She claimed that over
a period of four years she had received less basic pay
and fewer share options and bonuses than her two male