AIDING DISCRIMINATION

Miles v Gilbank and another: [2006] EWCA Civ 543

CA: Chadwick, Sedley and Arden LJJ: 11 May 2006

The claimant employee was working for the respondent company as a senior hair designer and trainee manager when she became pregnant. The claimant alleged that, once her line manager had been told of the pregnancy, the friendly atmosphere at work changed to one in which the claimant was subjected to a sustained campaign of bullying and discrimination by the manager and her colleagues, and that no attempt was made to make any risk assessment or adjustments in the working practice to accommodate the employee's condition. The claimant made a complaint of sex discrimination against the company and the manager, who was a director of the company and the majority shareholder. The employment tribunal upheld the complaint and made an award, inter alia, of £25,000 for injury to feelings against the respondents, holding them jointly and severally liable, having found that the manager consciously fostered the discriminatory culture. The manager appealed to the Employment Appeal Tribunal which dismissed her appeal on the ground that her conduct amounted to aiding the unlawful acts of the company for the purposes of section 42 of the Sex Discrimination Act 1975 and it was open to the employment tribunal to make an award on a joint and several basis.

The manager appealed.

The Court of Appeal held:
(1) In order to "aid" an act of unlawful discrimination under section 42 of the Sex Discrimination Act 1975 a person must have done more than merely create an environment in which discrimination could occur, and the precise acts of unlawful discrimination had to be identified and examined to establish whether the alleged aider had done anything to assist those acts. The tribunal had found that the manager's acts went well beyond simply creating an environment in which discrimination occurred and that she had fostered and encouraged a discriminatory culture targeted at the claimant, and pursuant to section 42 she was thereby deemed to have aided the discriminatory acts of the employer and was herself to be treated as having acted unlawfully in doing such acts. Accordingly, it was open to the employment tribunal to make an award against her and the employer on a joint and several basis in respect of the discrimination suffered by the claimant.

(2) Given that there were repeated acts of discrimination and that the manager's conduct was found to be deliberate and very hurtful, with the added seriousness that the discrimination involved the well-being of the claimant's unborn child, the award of £25,000 for injury to feelings, while at the top end of the highest bracket, was not manifestly excessive.

The appeal was dismissed.

Appearances: Nigel Woodhouse (Andersons) for the manager; Michael Reed (Free Representation Unit) for the claimant employee; the respondent company did not appear and was not represented.