30 August 2023|
Sex / Gender
Sexual Misconduct / Harassment
Discrimination – bringing aiding and abetting claims against a former employee
Farore Law recently acted in global litigation concerning a news anchor who made allegations of harassment and discrimination within one of the world’s leading media and entertainment companies. The litigation had cross-jurisdictional dimensions as the main alleged perpetrator operated out of and lived in California. Whilst there were acts of sexual harassment that occurred in London, electronic communications (which were also claimed to be acts of harassment) were sent from California. The parent company who employed the alleged perpetrator was headquartered in the United States; the division that employed our client was based in London.
Following the organisation’s internal investigation into the acts of sexual harassment, the media company removed the perpetrator from his senior post. Immediately after his departure, our client’s identity was leaked to the press which resulted in a devastating smear campaign against her.
What if the client suspected that a senior employee (“A”) at the corporation had, either themselves or by aiding and abetting members of the organisation, leaked her identity and/or confidential information about her grievance? Clearly, if established, this could very well be as an act of victimisation for her having raised allegations of sexual harassment. However, matters were complicated by the fact that, at the time of the leaks, A was no longer an employee of the parent company. We therefore could not establish that the employer was vicariously liable for the leaks.
Our task was to establish a route through which A as an individual was responsible for leaking, or aiding and abetting others to leak, our client’s identity.
Limitations under US law
Through discussion with US counsel, it was clear that California does not have anti-retaliation laws that cover the same ground as victimisation under the Equality Act, in particular that a claim of victimisation (or retaliation as it is known there) cannot be brought against an individual, as opposed to a company or employer.
How did we construct our victimisation claim under the Equality Act?
As discrimination lawyers, we wanted to construct a legal argument that would hold sway in the Employment Tribunals of England and Wales (“ET”). Our client was facing significant losses as a result of the leaks to the press and the resultant smear campaign, so it was critical to plead a powerful submission to protect her position.
One of the gateways of establishing jurisdiction in the ET is to demonstrate that the employer is domiciled in the UK and/or the business which engaged the employee is situated in the UK. We relied on this, and the fact that particular acts occurred in the UK, to argue that the ET was likely to accept jurisdiction, notwithstanding that certain electronic communications were sent from California.
The next step was to argue that a former employee could aid an act of victimisation. Section 112 of the Equality Act 2010 concerns “aiding contraventions”. On its face, the provision does not require the person who aids or abets a contravention under the Equality Act to be in an employment relationship with the person who ultimately commits the breach. This is further demonstrated in NHS Trust Development Authority v Saiger and others  I.C.R. 297 (Judge Hand QC sitting in the EAT), a claim which also concerned victimisation. Here, the claimant had been refused an interview by the First Respondent (an NHS Trust) for the position of Director of Nursing, owing to her having previously brought a claim for race discrimination and unfair dismissal against the Trust. Importantly, the Second Respondent to the claim (the NHS Trust Development Authority, a body tasked with overseeing director level appointments within NHS trusts) did not have a direct employment relationship with the claimant, nor was it a relevant service provider under section 55 of the Equality Act. The NHS Trust Development Authority was in a position not dissimilar from the ex-senior executive against whom the client wanted to take action.
The EAT found that the NHS Trust Development Authority (the Second Respondent) could be liable for aiding and abetting the Trust to commit acts of victimisation against the claimant. The EAT stated that section 112 creates primary liability (para 106). This means that a third party, who aids or abets another (let’s say the employer of the victim) to commit a breach of the Equality Act, can be liable, despite the aider not being in an employment relationship with the perpetrator or the victim.
Institute and Faculty of Actuaries v Davda  EAT 63 also shows that section 112 (aiding contraventions) is broader than section 111 (instructing, causing or inducing contraventions). This is because section 111(7) requires that the person providing the instruction (A) needs to be able to commit a “basic contravention” in relation to the actor who breaches the Equality Act (person B). Davda confirms that section 112 is broader than section 111. For example, on our facts, a section 111 claim might be challenging: it is not clear whether the former employee would have been in a position to commit a basic contravention of the Equality Act in respect of the current employees who leaked the client’s identity. Under section 112 (aiding contraventions), this does not need to be established.
The above analysis was the foundation for our argument: the former senior employee (A) could aid or abet employees (B) of the corporation (C) to commit acts of victimisation against the alleged victim (D), i.e., A could aid or abet B’s leaking of D’s identity and confidential information even though A was not employed by C at the time of the alleged leak. Of course, C might be vicariously liable for the acts of B, but could not be for A as he was not employed at the relevant time.
As a takeaway, it is always important to consider whether section 112 (aiding contraventions) and section 111 (instructing, causing or inducing contraventions) should be pleaded against individuals. As we have seen, these provisions may be particularly useful in relation to former employees who assist others in an organisation to discriminate against or victimise current employees.
Please contact us should you have an aiding and abetting claim against a perpetrator no longer employed by the corporate.