Employers are liable for the acts of their employees, as well as the acts of any "agents" who act with their authority, unless they can show they took all reasonable steps to prevent them from carrying out those actions. In Bungay and anor v Saini and ors, the Employment Appeal Tribunal (EAT) said that two board members had acted as "agents" for a religious centre and were therefore liable to pay compensation to two ex-employees.
Basic facts
Mr Chandel, the manager at the All Saints Haque Centre, was summarily dismissed by the board of directors on 7 July 2006 allegedly for gross misconduct. Mr Saini, a senior advice worker, resigned a few days later. Both men were Hindu, while the board of directors was under the control of the Ravidass community.
They brought claims of unfair dismissal and discrimination on grounds of faith against the centre and two members of its board, Mr Bungay and Mr Paul.
The tribunal held that Mr Chandel had been unfairly dismissed and discriminated against because of his faith while Mr Saini had been unfairly dismissed. Mr Saini appealed against that decision and the EAT agreed that he had also been discriminated against on the ground of his religion (see weekly LELR 107).
Tribunal hearing
At the remedies hearing the tribunal ruled that Mr Bungay and Mr Paul had been prime movers behind the discrimination.
As they were agents according to Regulations 22 and 23 of the Employment Equality (Religion or Belief) Regulations 2003 (now the Equality Act 2010), they were vicariously liable for the damages suffered by the two men.
The tribunal ordered them to pay a share of the awards for aggravated damages and injury to feelings which came to almost £7000 for each of the men.
EAT decision
The EAT dismissed their appeal. It said that the test was “whether ... the discriminator was exercising authority conferred by the principal” (the centre in this case) and not whether it had “authorised” the men to discriminate.
As the tribunal had found that the men were the prime movers in the discrimination campaign and that this was a campaign carried out in the name of the centre and in their work as directors, it was entitled to conclude that they were acting as its agents “even though they performed their duties in a discriminatory manner.” To decide otherwise would, said the EAT, defeat the purpose of the legislation.
The EAT also found that as the two directors had contributed to the damage incurred by the two employees, they were jointly and severally liable to pay them compensation, along with the centre.
Finally, the EAT said there was no rule stopping a tribunal from taking the post employment conduct of the two board members into account, along with the way they conducted themselves in their defence, when quantifying an award for aggravated damages.