Individuals who are named in discrimination proceedings together with their employer should be aware that they may now be made responsible for payment of the whole amount of any compensation awarded by an Employment Tribunal.

In the recent case of Way and another v Crouch, the Employment Appeals Tribunal decided that Employment Tribunals have the power to award compensation on a joint and several basis in discrimination cases. Where such an award is made, the Claimant will be able to pursue any of the Respondents to the action for the total of any compensation which is awarded on a joint and several basis. It will then be for the paying Respondent to seek a contribution from his co-Respondents.

In Way and another v Crouch, Miss Crouch was employed by a company controlled and largely owned by Mr Way. During Miss Crouch’s employment, she and Mr Way engaged in a personal relationship, which Miss Crouch eventually brought to an end. Upon ending her relationship with Mr Way, Miss Crouch was dismissed for alleged gross misconduct. Miss Crouch subsequently brought a claim against her employer and Mr Way for sex discrimination, arguing that the real reason for her termination was her breaking off the personal relationship with Mr Way.

Miss Crouch’s complaint of sex discrimination was upheld against both Mr Way and her employer and she was awarded £40,866, payable by the Respondents on a joint and several basis.

On appeal, the Employment Appeals Tribunal confirmed that Employment Tribunals are entitled to award compensation on a joint and several basis. However, the Employment Appeals Tribunal made it clear that Employment Tribunals should only award compensation on a joint and several basis on rare occasions and that Employment Tribunals should continue their present practice of apportioning liability.