Baldwin v Cleves School and ors – Courtney Step-Marsden successful in EAT appeal

Courtney Step-Marsden successful in EAT appeal regarding the liability of individually named respondents under Section 110 Equality Act 2010.

Naming individual employees as respondents to employment tribunal proceedings is a common issue, particularly in circumstances where the employer is not seeking to run the defence as outlined in s,109(4) Equality Act 2010.  However, the recent judgment of Baldwin v Cleves School reminds us that, on a correct construction of s.109 and s.110, an employment tribunal does not have discretion to find that the named respondents are not liable for their own acts of discrimination. 

The EAT has recently handed down judgment in Baldwin v Cleves School and ors [2024] EAT 66 in which Courtney Step-Marsden, instructed by Elizabeth McGlone and Yavnik Ganguly at Didlaw, represented the Appellant.

The Appeal concerned the individual liability of two named individual respondents, who were employees of the Respondent school.  The employment tribunal found at first instance that the school was liable for two acts of discrimination done by the named respondents, but dismissed the claims against the named respondents, brought pursuant to s.110 EqA.  The Employment Tribunal held that it had not been ‘seriously put’ that the named respondents should be held individually liable for the acts of discrimination, and stated that their acts, were nothing other than ‘attempts to address a complex situation’ with the Claimant.

The EAT allowed the appeal, outlining the correct construction of s.110 EqA.  The EAT held that s.110 does not expressly give a tribunal a discretion to find an employee or agent has not contravened s.110 EqA, and that there is no implicit discretion in s.110 to find an individual employee has not contravened s.110 in circumstances where the employer itself is liable under s.109.  The EAT noted that if there was such a discretion, the provision would say so expressly.  The EAT rejected the respondent’s contention that s.110 was an ancillary provision to s.109.  The EAT also considered that there were practical reasons for not conferring a discretion on the tribunal to decline to find a contravention under s.110 in circumstances where the employer is liable under s.109, considering the circumstances where the employer subsequently dissolves or goes into liquidation after the decision on liability, which would leave a claimant with no effective remedy.

The EAT dismissed the other grounds of appeal.  

The full judgment can be accessed here.

Find out more

Courtney Step-Marsden’s core practice includes Employment Law, Pensions Law, Public Law, Court of Protection, Education,  and Commercial work.

Much of Courtney’s practice stems around disabilities, which is a particular interest of hers. In the Employment Tribunal, she has extensive experience representing claimants and respondents in discrimination proceedings, often with a particular focus on the failure to make reasonable adjustments and Section 15 Equality Act 2010. Through both her Education practice and Court of Protection work, Courtney has gained extensive experience dealing with complex disabilities and presentations.

To find out more about Courtney, contact Nick Levett +44 (0)20 7427 4908 or Mark Gardner +44 (0)20 7427 4909.

News 7 May, 2024