London Borough of Hackney v Sivandandan | Employment Law Advocates UK

A difficulty that often arises in personal injury cases is how to divide up liability between the parties who are responsible for causing the injury. This has often resulted in some fiendishly complicated law. However, discrimination is a tort, albeit one that is created by statute, and so the same principles should apply.

Until recently, they did not. Tort law distinguishes between indivisible injuries, for which there will be joint liability, and divisible injuries, for which each responsible party is liable for its own contribution. Most acts of discrimination are indivisible and so there should nearly always be joint liability, and tribunals would rarely be expected to make seperate awards against both employers and the individuals within those entities for whose actions they are vicariously liable. That they did so is due to a misunderstanding about the right of parties to contributions from others who share responsibility for a tort which results in an award of damages.

The Civil Liability (Contribution) Act 1978 allows a person who is successfully sued for committing a tort to claim part of the damages from another party who shares the blame for it. However, what is important is that the claim is between the two parties and not between the original successful claimant and the parties. This means that, if the party seeking a contribution is not able to trace the party with which it shares liability, for example because it is insolvent, it must still pay the claimant all of the damages. It cannot pay half and blame the insolvency for not paying the rest. Also, it is likely that this contribution can only be claimed in the courts, which means that it should never even trouble the tribunal system.

It was the case of Way v Crouch which caused the difficulty, in suggesting that the Civil Liability (Contribution) Act allowed tribunals to decide, firstly that parties were not jointly liable when, as a matter of orthodox tort law, they clearly were and, secondly, to divide any damages awarded between those parties. After several judgments casting doubt upon this conclusion, this judgment has now been definitively overturned in London Borough of Hackney v Sivandandan. Although it concerned a situation in which one collective body aided another to discriminate, its principles are surely applicable to vicarious liability as well. It should lead to the end of the practice of splitting awards between discriminators and this should help claimants by protecting their damages against insolvency.