Personal claims: when managers become liable

Home ADVICE & GUIDANCE Personal claims: when managers become liable

Is the boss employing bullying tactics, singling a certain person out? Are colleagues making inappropriate comments? If this is linked to a protected characteristic then it may be construed as discriminatory treatment.

For example…did the Manager of a famous football team allegedly treat the female club doctor differently to a male head physio? Was the female club doctor not allowed to return to her normal duties after an incident during one match but the male head physio was able to return to his duties?

Where discrimination takes places (either before, during or after employment) and a person wishes to bring a claim, they may do so against the company, the employer as well as individuals. It is more common for employees to just take their employer to an employment tribunal but there are some cases when individuals can be culpable.

Employers are liable for the discriminatory acts of employees where those employees are acting in the course of their employment. The employer is also liable for the acts of third parties or agents (such as suppliers) in certain circumstances and where they fail to protect their employees after the discrimination becomes known to them.

Where in the course of their employment one employee makes discriminatory remarks or takes a course of action that is discriminatory they too can be added as a party to any tribunal proceedings. For example if one manager singles out the only disabled employee and for a reason related to their disability treat them differently to the other members of the team, the disabled employee can bring a claim against the employer as well as name the individual manager as party in the tribunal claim.

Employers in Tribunal can raise a defence to a complaint of discrimination if they can show that they took all reasonably practicable steps to prevent the discrimination.  Admittedly this is a notoriously high hurdle to pass and is it is rare for employers to be able to succeed with this defence. Yet if the employer can show that they took all reasonable steps including having an equality policy, mandatory training, refresher training and a zero tolerance approach to discrimination amongst others then the claim can still proceed against the individual employee who was being discriminatory.

So if both the club doctor and the head physio run on to the pitch to treat an injured player and the manager is not happy with their actions, resulting in the manager demoting them both from first team duties, this is not discriminatory . However if the male head physio is restored to the bench for future matches but the female club doctor is not, then the tribunal needs to look at what the reasons for demoting the female club doctor. Was it because she was a woman? Or could be that she was the senior person at the time and gave the order for the head physio to run onto the pitch and administer treatment with her.

Unlike in unfair dismissal, there is no cap on the amount of compensation a tribunal can award for discrimination. Compensation will normally include an award for injury to feelings as well as an award for financial losses suffered including loss of earnings. The awards for injury to feelings can vary from only a few thousand pounds to many thousands of pounds.

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Elena Boura