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Court confirms managers can be liable in discrimination cases

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A decision by the Court of Appeal confirms that managers held to be guilty of discrimination can be fined for their own acts plus those of other employees.

It is rare for a manager to be fined personally as usually a company is held vicariously liable for its employees’ acts. In this case (Miles v Gilbank) Maxine Miles was a director and a shareholder in the company, Quality Hairdressing, trading as Hollywood, now in liquidation.

An earlier hearing had been told that there had been no problems between Ms Miles and senior stylist Janine Gilbank until Ms Gilbank announced her pregnancy.

It found that Ms Miles had committed a number of discriminatory acts herself including: ignoring what Ms Gilbank’s doctor had advised, failing to carry out a risk assessment despite being asked, failing to enable Ms Gilbank to attend ante-natal appointments, refusing to allow Ms Gilbank to attend an emergency scan even though she knew Ms Gilbank had suffered bleeding, demoting her and failing to pay her full maternity pay entitlement.

In addition, other managers had committed discriminatory acts including telling Ms Gilbank to see a client when she feared a miscarriage, refusing to allow her a lunch break and using degrading language in front of clients and junior colleagues.

The tribunal’s award included £25,000 for injury to feelings for which Ms Miles and Quality Hairdressing were jointly and severally liable. Ms Miles appealed saying that the award was excessive and that she should not be held liable for the conduct of other employees.

Although the Court of Appeal judges agreed that Ms Miles was liable, they did so for different reasons – highlighting how complex this area of law can be.

In the leading judgment Lady Hale said a manager must have done more than create an environment in which discrimination could occur. You have to consider each act of discrimination and then decide whether the person alleged to have aided others to commit those acts had done so.

By using appropriate words and actions, Ms Miles could have stopped the discrimination at any point but she didn’t, so was considered to have fostered and encouraged a culture of bullying by example.

The other two judges said that because the acts were discriminatory the company was vicariously liable. Ms Miles was therefore responsible for aiding the vicarious liability.

All of the judges agreed that £25,000 was not excessive given Ms Gilbank’s concern for her unborn child’s welfare.

What this means is that senior managers who not only allow discrimination but encourage it can be found liable not only for their own acts but also those of their staff. Also, if an employer is able to raise a statutory defence, the personal liability of a manager could still remain.

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