14 February 2013

Huge sum for getting your recruitment wrong!

Huge sum for getting your recruitment wrong!

It is a well-established principle that employers are vicariously liable for the conduct of their employees. However does this mean that compensation can be apportioned between the employer and the individual responsible for the discriminatory acts?

The Court of Appeal (CA) has recently provided us with some clarity on the issue in London Borough of Hackney v Sivanandan & Ors.

Background

This discrimination case has been in dispute for the last 12 years. The Claimant had applied for a job with Hackney Action for Racial Equality ("HARE"), which was funded partly by the Hackney Borough Council ("the Council"), but was a separate body. Ms White, an employee of the Council, sat in on the interviews as was required in her role with the Council

Ms Sivanandan had brought Tribunal claims before and those interviewing were aware of this. She succeeded in persuading the Tribunal that her failure to obtain the position was because of those previous Tribunal claims.  That amounts to victimisation and in this case meant that she was awarded the enormous sum of £423,320.  That was divided up between Ms White, who was ordered to pay £1,905.41, with the Council picking up the tab for the other £421,415.

Not surprisingly, since the Council itself did not consider it had been at fault in any way (after all the job application was to HARE, not the Council, they tried to get the Courts to change the apportionment on the basis of degrees of responsibility, so that Ms White should pay a good deal more.

However, the courts were having none of it.  The liability is "joint and several", ie both of them are responsible for the full amount.  Since the Council is more likely than Ms White to have the funds to pay, Ms Sivanandan can pursue the Council for the full amount.

Conclusion

The outcome of this case sends employers a warning that careful consideration needs to be taken when dealing with applicants during the interview process. Previous Tribunal claims must not be taken into consideration, since that will amount to victimisation

As the Council has learned (rather expensively). vicarious liability means just that; ie an employer is responsible for the actions of its employees, even if you are allowing one of your employees to conduct an interview for an affiliated organisation

So to ensure that you do not expose your business to claims for any form of discrimination within the recruitment process ensure:

• 1. All member of management (particularly those involved in recruitment) are trained in recruitment and equality and diversity
• 2. Have a robust recruitment process in place.