Claimants can bring complaints of discrimination under the Disability Discrimination Act (now incorporated into the Equality Act) against fellow employees as well as their employer. In Barlow v Stone, the Employment Appeal Tribunal (EAT) said that claimants can lodge a complaint against a fellow employee even though they haven’t brought a claim against their employer.
Basic facts
Mr Barlow worked for Amber Valley Community Transport (AVCT) as a part time driver. In December 2008 he lodged a tribunal complaint against the organisation, alleging disability discrimination, including failure to make reasonable adjustments and victimisation, although these were mainly directed against Patrick Dawson, one of the directors.
In January 2009, Mr Stone, a fellow employee and friend of Mr Dawson, made a wholly false complaint to the police alleging that Mr Barlow had verbally abused him, used threatening language and driven erratically.
Mr Barlow then made a claim of victimisation against Mr Stone (but not AVCT), arguing that he and Mr Dawson had colluded in making the complaint against him because he had lodged a disability claim against AVCT.
Tribunal decision
The tribunal held that a claim for victimisation arises when someone is subject to a detriment (disadvantage) for bringing proceedings and that an employer can be liable for the acts of an employee. However, the tribunal said that it did not have jurisdiction to hear Mr Barlow’s case because no claim was lodged against AVCT. Mr Stone was a fellow employee, not his employer or potential employer.
Mr Barlow appealed, arguing that the tribunal had failed to take into account sections 57 (1) and (2) and 58(1) and (2) of the Disability Discrimination Act. For his part, Mr Stone argued that Mr Barlow had to bring a claim against AVCT before he could also be found liable.
Relevant law
Aiding unlawful acts
Sections 57(1) - A person who knowingly aids another person to do an unlawful act is to be treated for the purposes of this Act as himself doing the same kind of unlawful act.
Section 57(2) - For the purposes of subsection (1), an employee or agent for whose act the employer or principal is liable under section 58 ... shall be taken to have aided the employer or principal to do the act.
Liability of employers and principals
Section 58(1) - Anything done by a person in the course of his employment shall be treated for the purposes of this Act as also done by his employer, whether or not it was done with the employer’s knowledge or approval.
Section 58(2) - Anything done by a person as agent for another person with the authority of that other person shall be treated for the purposes of this Act as also done by that other person.
EAT decision
The EAT agreed with Mr Barlow. It said that it was not necessary for him to have brought a claim against his employer. As long as AVCT would have been vicariously liable for the discrimination, Mr Barlow had a viable claim of unlawful discrimination against the organisation.
It remitted the case to the same employment tribunal for further case management and then for hearing.
Comment
This claim was brought under the Disability Discrimination Act which was repealed by the Equality Act 2010. Section 10 of that Act makes clear that an employee can be personally liable provided the act was something for which the employer was vicariously liable. In practice, most claims are brought against the employer but it can be useful to lodge claims against individuals as well. In particular, an employer may succeed in arguing that they took all reasonable steps to prevent the discrimination. That defence is not open to an individual employee and as named individuals are jointly and severally liable they may be liable to pay compensation, as in the case of Gilbank v Miles.