The appellant local authority appealed against an award of compensation made against it on the basis that it was jointly and severally liable to pay £421,415 to the respondent, Ms Sivanandan, for victimisation. Ms Sivanandan had interviewed unsuccessfully for two posts with a body (H) which had been set up by the local authority and the Commission for Racial Equality. The interview panels consisted of members of H's executive committee and an employee (W) of the local authority. Ms Sivanandan had previously been a member of H's executive committee and had successfully brought proceedings against it for racial discrimination.

When she was not selected for either post, Ms Sivanandan brought victimisation claims against H's director and the panel members as primary discriminators, and against H, its executive committee and the local authority as being vicariously liable for the primary discriminators.

The tribunal found that there had been victimisation contrary to both the Sex Discrimination Act 1975 and the Race Relations Act 1976. Different respondents may seek proportions of damages from other respondents but the EAT pointed out:

"16(2)... It is important to emphasise that while this kind of “apportionment”, as it is often described (though that term is not used in the statute) determines the liability of concurrent tortfeasors as between themselves, it has no impact on the liability of any of them to the claimant. The claimant can recover in full against whichever tortfeasor he chooses, and that tortfeasor has the burden of recovery of any contribution from the others, and the risk that they may not be solvent."

The Court of Appeal held that an employment tribunal's decision not to apportion the compensation payable between the parties was legally correct, although for the reason that the tribunal had no power in law to make an apportionment rather than because there was no case for apportionment on the instant facts. "The ET did err in law in making the award against Ms White. It purported to exercise a power to apportion her liability to the claimant, which it did not have...

In this case the damage suffered by the claimant in consequence of victimisation in the treatment of her two job applications was indivisible, which means that, as against the claimant, no single tortfeasor is liable only for consequences peculiar to his acts. Each is jointly liable to the claimant for the full amount of the damage suffered by her. The indivisible character of the damage for which the Council and other respondents were jointly liable was not altered by the ET's error of law in purporting to apportion the liability of Ms White to the claimant." http://bit.ly/XJiUGD