England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HHJ PUGSLEY

		Royal Courts of Justice Strand, London, WC2A 2LL
		11th May 2006

Lady Justice Arden:

1. This is an appeal from the order of the Employment Appeal Tribunal (HHJ Pugsley with Lord Davies of Coity and Ms SM Wilson) dismissing the appeal of Ms M Miles from the order of the Employment Appeal Tribunal dated 31 March 2005. By its order the Employment Appeal Tribunal upheld the complaint of Ms Gilbank of sex discrimination and made an award of £29,050.60 against Ms Miles and Quality Hairdressing Limited (trading as Hollywood) ("QH") jointly and severally. Of this amount, the sum of £25,000 was awarded in respect of injury to feelings and the balance represented sums due in respect of unpaid wages and maternity pay together with a sum of £500 in respect of personal injury.
2. This appeal raises two questions of law: firstly, whether the Tribunal and the Employment Appeal Tribunal erred in law in finding that Ms Miles should be jointly and severally liable with QH for an award for injury to feelings where some of the acts of discrimination were carried out by managers other than Ms Miles and, secondly, whether the award for injury to feelings was manifestly excessive.
3. Section 42 of the Sex Discrimination Act 1975 provides that a person who knowingly aids another person to commit acts of unlawful discrimination is treated as himself doing those acts. It was under this section, which is set out below, that Ms Miles was declared to be jointly and severally liable with QH.
4. In my judgment, for the reasons set out below:

i) The tribunal was entitled to find that Ms Miles had aided QH to commit acts of discrimination against Ms Gilbank.

ii) The award of damages for injury to feelings was not so excessive as to disclose an error of law.

Aiding Unlawful Acts

5. The relevant provisions of the Sex Discrimination Act 1975 are sections 6, 41 and 42. These provide in material part as follows:-

"6 Discrimination against applicants and employees

(1) It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against a woman –

(a) in the arrangements he makes for the purpose of determining who should be offered that employment, or

(b) in the terms on which he offers her that employment, or

(c) by refusing or deliberately omitting to offer her that employment.

(2) It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her –

(a) in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or

(b) by dismissing her, or subjecting her to any other detriment.

41 Liability of employers and principals

(1) Anything done by a person in the course of his employment shall be treated for the purposes of this Act as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval.

(2) Anything done by a person as agent for another person with the authority (whether express or implied, and whether precedent or subsequent) of that other person shall be treated for the purposes of this Act as done by that other person as well as by him.

42 Aiding unlawful acts

(1) A person who knowingly aids another person to do an act made unlawful by this Act shall be treated for the purpose of this Act as himself doing an unlawful act of the like description.

(2) For the purposes of subsection (1) an employee or agent for whose act the employer or principal is liable under section 41 (or would be so liable but for section 41(3)) shall be deemed to aid the doing of the act by the employer or principal.

(3) A person does not under this section knowingly aid another to do an unlawful act if –

(a) he acts in reliance on a statement made to him by that other person that, by reason of any provision of this Act, the act which he aids would not be unlawful, and

(b) it is reasonable for him to rely on the statement.

(4) A person who knowingly or recklessly makes a statement such as is referred to in subsection (3)(a) which in a material respect is a false or misleading commits an offence, and shall be liable on summary conviction to a fine not exceeding [level 5 on the standard scale]."

6. Thus an employer is vicariously responsible for acts done by an employee in the course of his employment: section 41(1). Moreover the employee is liable for acts for which the employer is made vicariously liable or would be so liable but for the defence in section 41(3): section 42(2). The employee is also liable for the acts of other employees if he aids the employer to commit acts of unlawful discrimination: section 42(1).

The decision of the tribunal

7. In May 1997 Ms Gilbank was employed by QH as a trainee stylist working under the supervision of Ms Miles. Ms Miles was a director of QH and a major owner of its shares. Ms Gilbank worked continuously for QH save for a period of illness in 2003. In due course she was promoted to senior hair designer and trainee manger. Ms Miles was her line manger throughout.
8. In February 2004 Ms Gilbank became pregnant and she notified Ms Miles of her pregnancy on 20 February 2004. Ms Gilbank's evidence to the tribunal, which the tribunal accepted, was that, when she told Ms Miles that she was pregnant, the atmosphere changed. In summary, there was no attempt to adjust the working practices or to make a risk assessment or to help in arranging breaks which could assist. Ms Gilbank was told that she was not ill. She was told that she was just pregnant. She was also the object of unsympathetic remarks.
9. On 4 July 2004 Ms Gilbank sent an application to the tribunal complaining of sexual discrimination because she was pregnant. Her claim was heard by the tribunal sitting at Watford on 14 and 15 February 2005. Ms Gilbank appeared in person. Neither Ms Miles nor QH attended or was represented. Ms Miles had written to the tribunal on 12 February 2005 stating that QH had been dissolved on 18 January 2005 and struck off the register. Ms Gilbank and another witness gave evidence that there appeared to be trading activity at Ms Miles's premises. In the circumstances, the tribunal found on the balance of probability that the dissolution was not proved and the tribunal observed that there was no suggestion that the company had been dissolved in any other than a voluntary course of action. We were told that Ms Miles was now trading through a new company called Zero 8 Limited.
10. The tribunal found that both Ms Miles and QH had discriminated against Ms Gilbank on the ground of her sex. Its reserved judgment contains over six pages of closely reasoned findings on this matter.
11. The tribunal found that Ms Gilbank had suffered a number of detriments. Ms Miles had failed to make a risk assessment even though she was specifically asked to do so by Ms Gilbank on 15 April 2004. Ms Miles failed to consider any adjustment of the working practice in the salon of back-to-back continuous appointments throughout the entire working day. No specific time was allocated for breaks for meals or rests. Clients were booked in every forty-five minutes. Employees were expected to create their own break opportunities, in effect, by working fast enough to carve them out of the timetable of the day. When Ms Gilbank became pregnant this method was unsustainable for her. She informed Ms Miles of that on 8 April saying (in the light of medical advice she had received) that, going too long without eating increased the nausea from which she was suffering, not getting the chance to eat and drink properly was causing dehydration which would affect her and her child. She made it clear that if she was given sufficient time to eat and drink and have rest breaks it would not be necessary to cut her hours. It was at that point that Ms Miles told her that she was not ill, just pregnant.
12. There are a large number of other incidents on which the tribunal made findings. On 1 May 2004, Ms Miles refused to allow another employee to fetch Ms Gilbank something to eat. There were not adequate facilities for employees to keep food. On 3 July 2004 Ms Gilbank attempted to talk to Ms Miles to tell her what the doctor had told her on a recent visit. Ms Miles just ignored her. Ms Miles failed to ensure that there was any adjustment of Ms Gilbank's hours or appointments to enable her to attend anti-natal appointments, in particular on 5 April. Ms Miles had previously agreed with Ms Gilbank's mother, over the telephone, to adjust her appointments on 5 April to allow her to attend a scan at the accident and emergency department at the local hospital. However, Ms Gilbank discovered that no time was in fact allowed for this in the appointment book and when she drew this to Ms Miles's attention Ms Gilbank said that, "a hairdresser of your calibre can juggle it". Ms Gilbank was an hour late for the appointment so that she could not have the scan. This was an emergency scan following a bleeding she suffered on the previous Saturday and Ms Miles was well aware of that fact.
13. When Ms Gilbank asked for her schedule to be rearranged so as to allow her breaks for eating and resting, Ms Miles unilaterally cut her hours by requiring her to work three days which were her busiest days. On those days she was required to continue with the forty-five minute slot throughout the day for a working day of nine hours. Her additional duties were not adjusted. She had to clean the salon like other employees, staying late after work.
14. On a date which the tribunal does not specify, Ms Gilbank was demoted from her management post. On another occasion during her pregnancy, Ms Miles said to her "no one wants to be with a fat bird". Ms Gilbank also found that she was excluded from one to one meetings with managers which meant that productivity targets were not set and this removed her opportunity to increase her pay. She also suffered deductions from her wages which was unauthorised. These deductions were made by Ms Miles. She also received only 13 out of the 26 weeks maternity pay to which she was entitled.
15. The tribunal also found a number of acts of discrimination were committed by other managers. For instance, on 3 April 2004 when Ms Gilbank suffered bleeding which she took to be a symptom of miscarriage, Michelle, another manager, told her to go and deal with a client and see if the bleeding occurred later. Ms Gilbank was upset at this and concerned about the loss of the child. She was permitted to leave the salon when another team member intervened. Ms Gilbank was subsequently in hospital for seven hours.
16. Further, on an occasion in May 2004, Nicole, another manager, asked Ms Gilbank to fetch some paperwork from a storage cupboard. When Ms Gilbank told Nicole the cupboard was too high for her to reach, Nicole refused to leave the reception to fetch the paperwork herself so that Ms Gilbank was obliged to climb up on a lower level cupboard and reach up for the paperwork required. On another occasion, the same manager told her that she was not a priority because she was pregnant. The tribunal further found that on 13 April 2004 Nicole subjected Ms Miles to verbal abuse and spoke to her in a degrading way in front of clients and junior colleagues for not completing in time the haircut of a client who was in fact Nicole's client, not Ms Gilbank's. This caused Ms Gilbank distress and reduced her to tears.
17. Nicole also refused a fifteen minute break to eat at 2pm on 1 July 2004. Instead, Nicole demanded that Ms Gilbank carry out a client's haircut even though the client had arrived twenty-five minutes late. When Ms Gilbank pointed out this would cause her distress, Nicole simply swore at her. On the same day, another manager, called Shenel, reprimanded Ms Gilbank for a difference in a client's hair colour, about which the client had herself raised no complaint. She did this in demoralising terms in front of the rest of the staff. Ms Gilbank tried to give a reasonable explanation and was told "your hormones are not right, you are so emotional". As Ms Gilbank walked away, Shenel continued to shout after her. Ms Gilbank was so distressed at this incident that she could not stand up.
18. The tribunal also found that on several occasions, when Ms Gilbank went into the office to raise a complaint or ask for redress over the behaviour of other managers to her, she would hear the managers laughing immediately after she left the room. The tribunal found that Ms Gilbank reasonably supposed this to be laughter at her expense.
19. The tribunal was satisfied that the detriments which were inflicted on Ms Gilbank on the ground of her sex, i.e. that she was pregnant. There is no appeal against this finding.
20. As the Employment Appeal Tribunal said, the tribunal's findings were in very damming terms. On the question of an award for hurt feelings, the tribunal held:-

"Hurt feelings

24. The Claimant was clear about her feelings on this matter. She used the terms "very shocked and embarrassed" at the First Respondents reaction to her pregnancy. She was made to feel that she had "done something wrong" and "was being pushed out of the salon" which she had believed was her security and future. She was made to feel that though she was her unborn child's only source of food and well being she would not be able to give her that while she was a work. She was in fear of the loss of her job in making any complaints. She was "distraught" when sent back to work though bleeding, she was very "hurt" by comments on the part of the First Respondent and was made to feel she was risking colleagues futures. She felt degraded. She was forced to protest about unfair pressure and stress. Her requests to the left alone were ignore and that she was reduced to tears. She was publicly reprimanded and "felt demoralized and severely distressed". She was made to feel "undervalued" and felt that the First Respondent did not care for "her or her unborn child". She felt reluctant in climbing the cupboard to retrieve the paper work. She was "disheartened upset" and was caused "a lot of distress". She was distraught "at the end of each day" (which was confirmed very clearly by her witness Miss Nibre Walker, who told the Tribunal how the Claimant would go straight to her after work most night[s] in a distraught state because of things that had been said to her in the salon each day. She was made to feel "I was being demoted and that I had no future in the salon all because of my pregnancy". She was "embarrassed and left the team room distraught". She was told by Shenel "you aren't right" and was "upset distressed and anxious to the point I could not stand". She suffered "undue anxiety stress and bullying". She felt she was being "laughed at". She was very upset "about being snubbed" and so "upset" so that an employee tried to intervene on her behalf (see above).

24.1 All in all, there was a catalogue of behaviour towards her on the part of the First Respondent and the other Managers named above which goes beyond malicious and amounts to downright vicious. It was an inhumane and sustained campaign of bullying and discrimination which could not, in the circumstances on the facts found as above, be reasonably seen to have been accidental or merely insensitive. It was targeted, deliberate, repeated and consciously inflicted. It not only demonstrated to the Claimant a total lack of concern for the welfare of the Claimant herself, but a callous disregard or concern for the life of her unborn child.

. . .

26. The Tribunal have no hesitation on the basis of the facts found in this case in awarding the maximum possible amount for her feelings. We do this because we are satisfied on the evidence we have heard that the allegations are true and that the Claimant's distress and suffering including anxiety and distress at being prevented from doing everything needed to protect the child, was very substantial indeed.""

21. The tribunal made an award of £25,000 in respect of hurt feelings, being the top end of the bracket for an award of this kind advised by this court in the Vento case. This case is considered below.

Decision of the Employment Appeal Tribunal

22. The Employment Appeal Tribunal considered that the order of the Employment Appeal Tribunal disclosed no error of law. On the first issue, (aiding an act of unlawful discrimination), the Employment Appeal Tribunal said this:-

"9. If a security guard does not really know what his job is or why he has to carry out certain instructions and, in breach of such instructions, allows cars regularly to go out unsearched and without him making any checks, it might be a matter of debate as to whether he is aiding the commission of widespread thefts of parts from the company premises. But if the security guard knows in the particular, or knows in general, that parts are regularly being stolen from his employers and his job is to make sure that he examines vehicles being driven out of the car compound and does not do it, it seems to us in plain English that he is aiding the theft of car parts. If you are a senior manger and see bullying going on in which you join and in which you foster the culture in which that happens, we unequivocally consider it is open for a tribunal to see that as coming within the ambit of being responsible under the Act. We have no doubt at all this Tribunal correctly applied the position as they saw it and that that position is open to them in law. This was aiding an unlawful act. Furthermore, we have no doubt that in "lifting the veil" the person who made this company tick was Ms Miles. If the Claimant was not paid, undoubtedly the Tribunal can draw an inference that it was at Ms Miles's behest."

Submissions on the first question on this appeal to this court

23. On this appeal, Mr Nigel Woodhouse, for Ms Miles, submits that the tribunal failed to focus on the specific aid which was given in respect of each specific act of discrimination. The respondent submits that Ms Miles was the manager, she knew of the discrimination and she was properly jointly and severally liable because she had failed to act to prevent the other managers' acts of unlawful discrimination towards Ms Gilbank.

Aiding an act of unlawful discrimination

24. The meaning of aiding an act of unlawful discrimination for the purposes of the section 33 of the Race Relations Act 1976 was considered by the House of Lords in Anyanwu v South Bank Student Union [2001] ICR 391. The scheme of the relevant provisions of that Act is very similar to that of the Sex Discrimination Act 1975, and it has not been suggested that the meaning of section 42 of the Sex Discrimination Act 1975 should differ from the meaning of the like provision (section 33) in the Race Relations Act 1976.
25. In the Anyanwu case, the appellants contended that their dismissal on the grounds of race as employees of a student union had been aided by the university in whose premises they had worked. They alleged that the university had assisted the union, or co-operated with it, by making allegations against the appellants to the union to the effect that the appellants were involved in irregularities in connection with union funds and were guilty of intimidation to union staff. They also relied on the fact that the university had expelled them from the university and thus excluded them from the union's premises. This court (by a majority) struck out the claim against the university on the grounds that the university was a prime mover rather than a body which provided assistance. The House did not consider that this was a helpful distinction. The House considered the interpretation of the words "aids" and expressed various views as to what would on the facts of that case constitute aiding.
26. As to the interpretation of section 33, Lord Bingham held that the 1976 Act drew a distinction between aiding an act of unlawful discrimination and for example procuring a person to commit such an act (see section 30 of the 1976 Act and to the same effect section 39 of the Sex Discrimination Act 1975). He held that:

"It is plain that a party who causes another to do an unlawful act does not necessarily aid him to do it. A farmer who starves his sheepdog, with the result that the ravening dog savages a newborn lamb, may reasonably be said to have caused the death of the lamb, but he could not be said to have aided the dog to kill the lamb." (para. 5)

27. Lord Bingham held that the relevant questions to be asked were as follows:

"The first question which must be asked is what the act of the student union made unlawful by Part II of the Act which it is said that the university knowingly aided the student union to do?...The second question is: what is it alleged that the university did which knowingly aided the doing of that unlawful act by the student union?... " (paras 16 and 17)

28. Lord Browne-Wilkinson agreed with Lord Bingham on the interpretation of section 33. Lord Steyn also agreed with Lord Bingham's interpretation of section 33. He added that section 33 had to be interpreted in its contextual setting.
29. Lord Hope also agreed with Lord Bingham and Lord Steyn on the interpretation of section 33. He held:

"41. The activity which is indicated by the words 'aids' is best understood by reading it together with the words "to do an act" which appear in the same phrase. It can be contrasted with the words "instruct" and "induce" which are used in sections 30 and 31. The word "instructs" in section 30 is used to describe something done by a person with authority or influence. It is used in the sense of issuing an order which the other person must, or can be persuaded to, obey. A person who in that sense instructs, induces or causes another person to do an act may also knowingly aid him to do that act, or he may not. This is because the word "aids" indicates an act of a different kind from that which may have caused the person to do the unlawful act. It indicates the giving of some kind of assistance to the other person which helps him to do it. The amount or value of that help or assistance is of no importance. Nor is the time at which it is given. It may or may not have been necessary. All that is needed is an act of some kind, done knowingly, which helps the other person to do the unlawful act.

42. I would be cautious about selecting examples to illustrate what the word "aids" means which relate to criminal conduct . . . one must bear in mind that the word "aids" is being used in the context which section 33(1) has set for it. This is in the context of acts made unlawful by the Act, which are many and various and may require inferences to be drawn from a complex variety of facts and circumstances. For this purpose I think that it is enough to say that the word "aids" should be given its plain and ordinary meaning. It requires that the facts be examined to provide the answers to two questions: (i) what was the act done by the other person which was made unlawful by the Act? (ii) did the act which is in question aid the other person to do that act?"

30. Lord Millett also agreed with Lord Bingham. He held that aiding is very different concept from encouraging or inducing on the one hand and causing or procuring on the other hand. He held that aiding required a much closer involvement in the act of the principal. He continued:

"50. In my opinion it is, however, unhelpful to have regard to words like "co-operate" or "collaborate", which introduce a different concept in which both parties are principals. Such words serve only to confuse the issue, since they distract attention from the particular act of the principal which the accessory is alleged to have aided. Where two parties join together to achieve a common purpose, they may no doubt be said to aid each other in achieving that purpose. But in the course of their co-operation, each may play his separate part unaided by the other. I take a simple example. Suppose A and B decide to let a bull loose from a field. A opens the gate and B drives the bull out of the field. They co-operate in letting the bull loose. A may without inaccuracy also be said to have aided B to let the bull loose. But B can hardly be said to have aided A to open the gate. This serves to demonstrate the importance of identifying with precision the act of the principal to which the accessory is alleged to have lent his aid."

31. As the question before the House was whether the claim should have been struck out, the House did not have to consider whether any acts of the university in fact amounted to aiding unlawful discrimination, and there were clearly differences of view among them. Lord Bingham was doubtful whether there was sufficient in the allegations to go to trial although he was content to acquiesce in the view of the majority that claim against the university should not be struck out. (para.18) Lord Steyn (with whom Lord Browne-Wilkinson agreed on this issue) mentions only the allegations which the university had made against the appellants to the student union (para. 34). Lord Hope expressed the view that the allegations that the university had built up a climate of racial prejudice against the appellants or intimidated officers of the union or instigated the appellants' removal would not be enough to show that the university had aided the union to dismiss the appellants on racial grounds. He held, however, that there was an issue that ought to be tried arising out of the allegation that the union had connived with the university to bring about the removal of the appellants. The university had brought about changes in the union's constitution which placed the control of the union in the hands of appointees of the university who caused the removal of the appellants (paras. 45 and 46).
32. Lord Millett agreed that the case should go to trial but he did not consider that the matters alleged against the university could, even if done deliberately and with the object of causing the appellants' dismissal, amount to aiding the union in its decision to dismiss the appellants (para. 50).
33. It is thus clear, that in order to "aid" an act of unlawful discrimination a person must have done more than merely create an environment in which discrimination can occur. Care has to be taken to identify the acts of unlawful discrimination and to examine whether the acts of the person who was alleged to have aided the commission of those acts has in fact done do. Thus, if in Lord Millett's example, civil liability is incurred by opening the gate, that liability is incurred by A and B does not "aid" him to commit the act which causes that liability to arise
34. It follows that, in cases under section 42, it is important to look at the precise acts of discrimination which the tribunal has found and consider whether the alleged aider has done anything to assist those acts.
35. In the present case, the tribunal made detailed findings about the acts which it found to be of unlawful discrimination. I have set them out in detail above. The acts of Ms Miles went well beyond simply creating an environment in which discrimination occurred. At para. 12.5 of its decision, after setting out what happened when Ms Gilbank went into the office to complain (see para. 18 of this judgment), the tribunal found:-

"As salon manager we find that on the balance of probability [Miss Miles] consciously fostered and encouraged a discriminatory culture to grow up which targeted [Miss Gilbank]. She did so by this behaviour and by the example she herself set other managers and this was discriminatory."

36. In that finding, the tribunal went beyond merely finding that a culture had been allowed to grow up. The tribunal specifically found that this was the result of Ms Miles's behaviour. The behaviour referred to was the way she dealt with Ms Gilbank's complaints in the office. By implication, she had assisted the other managers to act as they did because she was dismissive of Ms Gilbank's complaints against the other managers in their presence and in addition committed acts of discrimination herself, and thus made it clear that such acts were also acceptable for the other managers. She in effect had connived with them at the meetings where Ms Gilbank asked for redress and left hearing laughter which the tribunal found she reasonably inferred to be at her expense. Ms Miles could have stopped the discriminatory conduct of both herself and other managers by giving appropriate instructions and acting appropriately herself. Her acts were not ambiguous so that Ms Miles could assert that the managers must have misconstrued what she meant.
37. In those circumstances, in my judgment, the tribunal was right to reach the conclusion they did. The Employment Appeal Tribunal took an analogy of bullying observed by a senior manager and participated in by him. That is not a strictly accurate analogy here because Ms Miles did not on the tribunal's findings actually participate in the discriminatory conduct of her other managers. But she must have known that it was occurring. She encouraged it to occur, for instance, by joining in laughing at Ms Gilbank at meetings in the office after Ms Gilbank had made a complaint and when she heard laughter after she left the room.
38. In those circumstances, in my judgment, the Employment Appeal Tribunal came to the right conclusion.

Award for injury to feelings

39. The Employment Appeal Tribunal assessed the award for injury to feelings at £25,000.
40. On this matter guidance was given by this Court in Vento v West Yorkshire Police [2003] ICR 318 at [65] to [66]:-

"Guidance

65. Employment tribunals and those who practise in them might find it helpful if this court were to identify three broad bands of compensation for injury to feelings, as distinct from compensation for psychiatric or similar personal injury. (i) The top band should normally be between £15,000 and £25,000. Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race. This case falls within that band. Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000. (ii) The middle band of between £5,000 and £15,000 should be used for serious cases, which do not merit an award in the highest band. (iii) Awards of between £500 and £5,000 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one off occurrence. In general, awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings.

66. There is, of course, within each band considerable flexibility, allowing tribunals to fix what is considered to be fair, reasonable and just compensation in the particular circumstances of the case."

41. Accordingly, the award which the tribunal made in this case was at the top end of the bracket for the most serious cases. Mr Woodhouse submits that the amount was manifestly excessive. The discrimination in this case was for a relatively short period and had no long term effect of Ms Gilbank. He contends that the tribunal should have made an award at the bottom end of the top bracket or at the top end of the middle bracket. For Ms Gilbank it is said that the tribunal clearly regarded Ms Miles's actions as of the most serious kind. The length of the period in which discrimination occurs is only a factor. It cannot be said that the award is perverse. The guidance laid down by this court in Vento was not intended to be applied like rules of law.
42. In this matter, I do not consider that in making its award the tribunal can be said to have made an award which is manifestly excessive and thus to have erred in law. In the Vento case, this court contemplated that there would be cases where the amount of the award could exceed even its guidelines. So, although this award is at the top end of the highest bracket, it does not mean that the Employment Appeal Tribunal and the tribunal did not consider that a more serious case could not occur. There clearly are more serious cases. However, in this case there were repeated acts of discrimination, and the conduct of Ms Miles was found to be deliberate and very hurtful and distressing (see para. 24 of the tribunal's decision set out above). Moreover, it also involved the well-being of Ms Gilbank's unborn child. That gives this case added seriousness and must have imposed an additional level of stress on Ms Gilbank as an expectant mother. The tribunal heard the evidence, and it accepted it. It may be that it would have reached a different conclusion if Ms Miles had given evidence too but she decided not to do so. In all the circumstances, I do not consider that this court can conclude that the award was manifestly excessive.

Disposition

43. For these reasons, I would dismiss this appeal.

Lord Justice Sedley:

44. The Sex Discrimination Act 1975, like the Race Relations Act 1976 and the Disability Discrimination Act 1995, contains mechanisms for ensuring that responsibility for acts of unlawful discrimination in the employment field is justly allocated, though, in the manner of parliamentary drafting, the provisions – Arden LJ has set them out in paragraph 5 above - are laconically and sometimes cryptically expressed.
45. Their scheme is nevertheless reasonably clear. The governing category of discrimination for present purposes is treating a woman, on the ground of her sex, less favourably than a man is or would be treated. It is now established that the adverse treatment of a woman because she is pregnant constitutes sex discrimination notwithstanding that there can be no true male comparator^[1]. There is no dispute that QH as the employer in the present case was vicariously responsible for the campaign of sex discrimination against Ms Gilbank. This was by virtue of s.6, which places the principal responsibility for sex discrimination at work on the employer, together with s.41(1), which makes the employer vicariously liable for the discriminatory acts of employees unless (see s.41(3)) the employer has done what was reasonably practicable to prevent it happening.
46. The employer's responsibility is not, however, exhaustive. By s.39 a person who uses his or her authority to instruct a subordinate to discriminate commits a distinct wrong. By s.40 the same is true of a person who by offers or threats induces others to discriminate. These, however, are freestanding wrongs: they do not implicate an employer unless they are done in the course of the offender's employment, in which case s.41(1) will make the employer vicariously liable, absent a s.41(3) defence.
47. The other, and critical, provision for the attribution of liability for discrimination in the employment field is s.42. The first subsection implicates in liability any person who knowingly aids another person to discriminate unlawfully. Recognising, however, that aiding would be an awkward way of describing the relationship between a fellow employee's discriminatory acts and the employer's vicarious liability for them^[2], but intending plainly that the fellow employee should not escape personal liability for such acts, the second subsection deems them to amount to aiding. Deeming is treating something as what it is not. The purpose is underscored by the parenthesis in the subsection: it eliminates from the deeming process the exemption from vicarious liability available to an employer under s.41(3). In other words, while the employer may be able to escape liability by showing that it had done what it could to prevent discrimination, the employee who nevertheless discriminates against other staff in the course of his or her employment becomes and remains personally liable for it.
48. The effect is well described in the Discrimination Law Handbook^[3]:

"A worker who discriminates 'in the course of his employment' such that his employer is liable for it (or would be but for the statutory defence …) is personally liable under the SDA 1975, RRA 1976 or DDA 1995 for that discrimination … This is because the perpetrator is deemed to 'aid' his or her employer's vicarious liability for his or her actions. This applies even where the employer makes out the statutory defence …, in which case the guilty employee will find himself solely liable…."

49. The present problem arises because the corporate employer has been dissolved and struck off the register and cannot pay compensation. In the light of the statutory scheme, the personal liability of the sole director and salon manager, Ms Miles, for her own discriminatory acts is not in dispute. What she disputes is her liability to compensate Ms Gilbank for the discriminatory conduct of other employees.
50. The employment tribunal found as a fact that Ms Miles by her own behaviour had "consciously fostered and encouraged a discriminatory culture" aimed at Ms Gilbank. The EAT considered that this amounted to aiding within s.42(1). Mr Woodhouse, counsel for the appellant, submits that the natural meaning of aiding does not reach such conduct. In his helpful written submission for Ms Gilbank, Mr Reed of the Free Representation Unit submits that one does not have to become entangled in this question because s.6(2) answers it.
51. In the statutory scheme it is Part II, which includes s.6, which defines and proscribes discrimination in the employment field. Ss.39 to 42 are in Part IV, which is captioned 'Other unlawful acts'. It is these provisions which proscribe instructing or inducing others to commit acts of discrimination. In the employment field this will include customers who refuse, for example, to let a man or a black person or a person with a disability serve them^[4]. Section 41 also amplifies Part II by introducing vicarious liability for employers; but it is located in Part IV both because it applies to principals as well as to employers and because it creates a vicarious liability for all unlawful acts of sex discrimination whether these fall within or outside Part II. It is also Part IV which, by s.42(1), makes it unlawful to aid others to discriminate and, by s.42(2), artificially enlarges aiding to include the acts of employees and agents.
52. It would be remarkable if legislation which takes such pains to outlaw not only the commission of acts of sex discrimination but instructions, inducement and assistance to commit such acts, had inadvertently left out the encouragement or promotion of them, particularly in the context of common employment. But while an Act of Parliament can do no wrong, it can, as Holt CJ once remarked, do some strange things. Is this, as Mr Woodhouse submits, one of them?
53. The evident purpose of s.42(2) is to establish personal liability alongside vicarious liability in common employment. It does so by enlarging the meaning of aiding, but only so as to render individual employees personally liable along with the company which employed them. If Ms Miles is to be held personally liable by this means for what her staff did, it has to be because her encouragement was by virtue of s.41(1) the company's act. But the words 'the act' in s.42(2) are plainly limited to the act which incurs vicarious liability in the first place. There is no crossover: each employee is deemed to have aided the company to do what she herself did, and so to be personally liable for it; but she is not deemed to have aided the company to do what fellow employees did.
54. I therefore agree with Mr Reed that the answer, if there is one, has to be found initially in s.6(2). Did Ms Miles, by encouraging and fostering the discriminatory treatment of Ms Gillbank by her other staff, subject Ms Gilbank to a detriment? In my opinion she did. Whether the staff are regarded as doing her bidding or simply as being encouraged by her, she did more than turn a blind eye to their behaviour. She had it in her power to stop them; instead she set them an example by her own conduct. These findings of the employment tribunal amount in my judgment to the positive subjection by Ms Miles of an employee to a detriment.
55. It follows that there is, at least in the present situation, no unaccountable disparity in the legislation which would make Ms Miles personally liable for instructing or inducing her staff to discriminate against Ms Gilbank but not for encouraging them to do so. Simple toleration of discriminatory conduct may raise other and more difficult questions, but this case is about more than that.
56. Was Ms Gilbank, however, employed by the author of the detriment, as s. 6(2) also requires? In law she was employed by not by Ms Miles but by QH. But Ms Miles' acts are attributed by s.41(1) to the company. It follows that 'a person', the company, had subjected a woman employed by it to a detriment on the ground of her sex, by reason both of Ms Miles' own behaviour towards her and of her encouragement of the behaviour of other staff. The provisions of s.6(2) are in my judgment met without resort to more of Part IV than s.41(1). If, however, more is needed, then Ms Miles is deemed by virtue of s.42(2) to have aided the company to discriminate and so, by virtue of s.42(1), to have acted unlawfully herself.
57. For these reasons, which are not quite the same as those of Arden LJ and of the EAT, I too would uphold the decisions of the employment tribunal and the EAT and dismiss this appeal. Like Arden LJ, I do not consider that there is any error of law or of principle in the award of compensation.

Lord Justice Chadwick:
 


58. I agree with the other members of the Court that this appeal should be dismissed. But, in the circumstances that they may have differed as to the route by which that conclusion is to be reached, it is appropriate that I set out my own reasons. I can do so shortly.
59. Ms Gilbank was employed by Quality Hairdressing Limited ("QHL") at an establishment in Great Britain. Ms Miles was a director of QHL and the owner of its shares. She was the manager with day to day control of the salon at which Ms Gilbank was employed. Ms Gilbank's complaint before the employment tribunal was in respect of discrimination by QHL and Ms Miles contrary to section 6(2) of the Sex Discrimination Act 1975. So far as material that section provides:

"6(2) It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her – (b) by . . . subjecting her to any . . . detriment".

60. As Lady Justice Arden has explained, the employment tribunal were satisfied that specific acts done by Ms Miles and by three other employees (identified as Michelle, Nicole and Chenel) were acts which subjected Ms Gilbank to discrimination and detriment within the meaning of section 6(2)(b) of the Act. That finding would be sufficient to support a claim for damages against QHL. The complaint against QHL is made out because (absent a defence under section 41(3) of the Act) acts done by other employees of the employer in the course of their employment are treated as done by the employer. Section 41 is in these terms (so far as material):

"41(1) Anything done by a person in the course of his employment shall be treated for the purposes of this Act as done by his employer as well as by him, whether or not it was done with the employer's knowledge and approval.

. . .

(3) In proceedings brought under this Act against any person in respect of an act alleged to be done by an employee of his it shall be a defence for that person to prove that he took such steps as were reasonably practical to prevent the employee from doing that act, or from doing in the course of his employment acts of that description."

61. That finding would be sufficient, also, to support a claim for damages against Ms Miles in respect of her own specific acts of discrimination. That is the effect of section 42(2) of the Act, read in conjunction with section 42(1). The two subsections are in these terms (so far as material):

"42(1) A person who knowingly aids another person to do an act made unlawful by this Act shall be treated for the purpose of this Act as himself doing an unlawful act of the like description.

(2) For the purposes of subsection (1) an employee . . . for whose act the employer . . . is liable under section 41 (or would be so liable but for section 41(3)) shall be deemed to aid the doing of the act by the employer . . ."

But the finding that acts done by the three other employees were acts which subjected Ms Gilbank to discrimination within the meaning of section 6(2)(b) of the Act would not, of itself, be sufficient to support a claim for damages against Ms Miles in respect of those acts, which were not her own. Something more was required in order to support the tribunal's conclusion that Ms Miles was jointly and severally liable, with QHL, for all the acts which had been done.

62. The findings upon which the tribunal – and, on appeal, the Employment Appeal Tribunal – relied to support the conclusion that Ms Miles was jointly and severally liable with QHL not only for her own acts but also for the acts done by the other employees are found in the two passages which Lady Justice Arden has set out in her judgment:

"As salon manager we find that on the balance of probability [Miss Miles] consciously fostered and encouraged a discriminatory culture to grow up which targeted [Miss Gilbank]. She did so by this behaviour and by the example she herself set other managers . . ."

"All in all, there was a catalogue of behaviour towards [Ms Gilbank] on the part of [Ms Miles] and the other Managers named above which goes beyond malicious and amounts to downright vicious. It was an inhumane and sustained campaign of bullying and discrimination which could not, in the circumstances on the facts found as above, be reasonably seen to have been accidental or merely insensitive. It was targeted, deliberate, repeated and consciously inflicted. . . ."

Reading those passages together it is clear that the tribunal found that Ms Miles knowingly fostered and encouraged, by her own behaviour and by the example which she set other managers, a sustained campaign of bullying and discrimination which was targeted and deliberate.

63. In my view there can be no doubt that an employer who knowingly fosters and encourages a sustained campaign of bullying and discrimination against an employee who is a woman does an act which is unlawful by virtue of section 6(2) of the 1975 Act. I agree with Lady Justice Arden that the tribunal's findings go well beyond a finding only that a culture had been allowed to grow up at the salon in which discrimination could occur. As Lord Justice Sedley has put it, this case is about more than "simple toleration of discriminatory conduct by others". The encouragement of a sustained and targeted campaign of bullying was an act which subjected Ms Gilbank to detriment in the context of her employment.
64. The acts of Ms Miles in fostering and encouraging a campaign of bullying, targeted against Ms Gilbank, are to be treated as acts done by QHL as well as by Ms Miles – section 41(1) of the 1975 Act. Further, Ms Miles is deemed to have aided the employer, QHL, in the doing of those acts – section 42(2) of the Act. And, accordingly, Ms Miles is herself to be treated for the purposes of the Act as having acted unlawfully in doing those acts – section 42(1) of the Act.
65. It is for those reasons – which do not, I think, differ in substance from the reasons which have led each of the other members of the Court to the same conclusion – that I would dismiss the appeal from the tribunal's decision that Ms Miles was jointly and severally liable with QHL for the damages claimed in this case.
66. For completeness I should add that I can see no basis for this Court to interfere with the award of £25,000 made by the tribunal for 'injury to feelings'. The tribunal directed themselves, correctly in the light of the guidance given by this Court in Vento v West Yorkshire Police [2003] ICR 318, that awards of that amount should only be made "in the most serious cases"; and that the award should be seen as being at the top end of the range appropriate in such cases. But, for the reasons which they gave, the tribunal plainly did regard this as a most serious case; and plainly did take the view that it should attract an award at the upper limit. It cannot be said that the tribunal erred in law in taking that view.

Note 1   Webb v EMO Air Cargo (UK) Ltd [1994] ECR I-3657; [1994] IRLR 482.    [Back]

Note 2   See Anyanwu v South Bank Student Union [2001] ICR 391.    [Back]

Note 3    Palmer, Gill, Monaghan, Moon and Stacey, ed. McColgan, Legal Action Group, 2002, §31.12.    [Back]

Note 4   Except where gender or race is a genuine occupational qualification: Sex Discrimination Act 1975, s.7; Race Relations Act 1976, s.5.    [Back]