Hello and welcome back to our case of the week. This week, we take a look at the case of Baldwin v Cleves School involving a newly qualified teacher presenting a disability discrimination claim. Last week, we had the case of Ian Escudier v Coca-Cola on identifying disability claims. For those that missed it you can find it here.
Background
The claimant, who was disabled, was employed by the first respondent school as a newly qualified teacher (NQT). At the time of her employment, she had not yet completed her postgraduate certificate in education (PGCE). The second respondent in the case was the school’s head teacher, while the third respondent was another teacher at the school (referred to as the “other teacher”). As part of her role, the claimant was required to complete a formal NQT induction year. During this period, two notable incidents occurred that became central to the claimant’s later disability discrimination claim.
The first incident involved the third respondent, the other teacher, who contacted the claimant’s PGCE tutor. In that communication, the other teacher sought specific details about the claimant’s health, asking what had been wrong with her, when she had been unwell, and how many days she had been absent. The tutor, while acknowledging the claimant had been unwell and that this had delayed her completion of the Certificate of Educational and Professional Development (CEPD), declined to provide further details, copying the claimant into her response. The claimant, feeling that the other teacher had inappropriately gone behind her back, confronted her. The other teacher, in response, accused the claimant of acting unprofessionally.
The second incident occurred when the head teacher, the second respondent, completed an NQT report on the claimant. In the report, the head teacher included a comment that the claimant had not acted with integrity at all times. The claimant, feeling this comment was unjust and possibly related to her disability, resigned from her position. Following her resignation, she brought claims of disability discrimination against the school, the other teacher, and the head teacher.
Employment Tribunal
At the employment tribunal, the claimant argued that both incidents amounted to disability discrimination. The tribunal ultimately found that the other teacher’s query into the claimant’s health amounted to an act of direct discrimination under the Equality Act 2010 (EqA). Additionally, the tribunal upheld the claimant’s complaint of discrimination arising from disability, determining that the head teacher’s comment regarding her lack of integrity was related to the claimant’s disability or perceived disability. Consequently, the tribunal found that the school was liable in its capacity as the claimant’s employer under s109 EqA.
However, the tribunal rejected the claims against the individual respondents—the other teacher and the head teacher. It held that while the actions of the individual respondents were, in part, misguided and discriminatory, they did not constitute independent liability. The tribunal took the view that the individuals had been attempting to manage a complex situation involving a newly qualified teacher, albeit in a manner that led to discriminatory outcomes. Accordingly, the school, as the employer, was found liable for the discriminatory acts, but the tribunal did not hold the other teacher or the head teacher personally responsible.
Dissatisfied with this outcome, the claimant appealed the tribunal’s decision, specifically challenging the finding that the individual respondents were not liable. She argued that it was the acts of the individual respondents that had made the school liable under s109 EqA, which holds employers liable for discriminatory acts carried out by their employees or agents. The claimant further contended that the tribunal had failed to consider the application of s110 EqA, which deals with the liability of employees and agents in their personal capacities.
The crux of the appeal rested on the interaction between s109 and s110 EqA. The claimant argued that the tribunal should have held the individual respondents liable under s110, as their acts constituted primary contraventions of the Act. She asserted that the tribunal had improperly treated s110 as ancillary to s109 by failing to hold the individual respondents liable despite finding the employer liable.
The claimant also raised practical concerns, noting that if the employer were to dissolve or go into liquidation before any compensation was paid, she might be left without an effective remedy in the absence of a finding under s110 against the individual respondents personally.
Employment Appeal Tribunal
In reviewing the appeal, it was determined that the tribunal had erred in not applying s110 to the individual respondents. The findings of the tribunal had already established that the school was liable for two acts of discrimination. Implicit in those findings was that the conditions for liability under s110 had been satisfied. Specifically, the other teacher and the head teacher were employees or agents of the school, and their actions were treated as being done by the school under s109(1). Since the acts themselves were found to be contraventions of the EqA, the tribunal should have also found that the individual respondents were liable under s110.
Takeaway Points
The appeal was upheld on the basis that the tribunal should have found the individual respondents—the other teacher and the head teacher—liable for the discriminatory acts under s110 of the EqA, in addition to finding the school liable under s109.
There is no discretion on the part of the tribunal to refuse to make a finding of a contravention under s110, so long as the conditions for liability are met. Whether or not the employer runs a defence under s 109(4) or succeeds in that defence is irrelevant to the application of s110. In this case, the tribunal’s failure to hold the individual respondents liable constituted an error of law, as both s109 and s110 operate independently and should have been applied according to their respective terms.
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