Despite the Employment Appeals Tribunal’s attempt to limit the effect of its decision in Way and another v Crouch, it has already approved an award of compensation on a joint and several basis in a second case. In Miles and another v Gilbank, the Employment Appeals Tribunal upheld the whole of an award made on a joint and several basis against an employer (a hair salon) and its senior manager (also the majority shareholder of the employer), who fostered discriminatory behaviour towards a pregnant employee.

Although, there were factors in the case of Miles and another v Gilbank to justify a joint and several award (i.e. in reality, the senior manager owned the employer salon and allegedly put the salon into a voluntary liquidation to avoid judgment), the Employment Appeals Tribunal upheld the Employment Tribunal’s decision to make an award on a joint and several basis, solely with regard to the fact that the manager held a senior position and should not have been fostering the discriminatory behaviour. The Employment Appeals Tribunal did not examine whether aside from the senior manager’s behaviour, it was otherwise appropriate for a joint and several award to be made in this case.

Until there have been more cases on this point, it must be assumed that the circumstances are expanding in which compensation will be awarded on a joint and several basis. Employers should therefore ensure that managers are fully trained and aware of their duties under discrimination law. Otherwise, managers and those in senior positions may suddenly find themselves being pursued for compensation that would previously have been paid for by the employer.

Ranjit Dhindsa is an employment partner at Reed Smith.