Post-employment conduct can be used in dismissal cases, says Victoria Willson
The Employment Appeal Tribunal has handed down its latest judgement in the case of Bungay and Paul v Saini, Chandel and All Saints Haque Centre. This case shows charities that they can be liable for the acts of their agents and how post-dismissal behaviour can lead to aggravated damages.
Mr Saini and Mr Chandel were both employed by the All Saints Haque Centre, a not-for-profit advice centre in Wolverhampton. Saini was a senior advice worker and Chandel was company secretary and project manager.
Both brought claims for wrongful dismissal and discrimination on the grounds of religious faith against the centre, Mr Bungay, chairman of the centre's board, and Mr Paul, a board member. The claims were successful and the tribunal found that Bungay and Paul had operated an anti-Hindu policy against Saini and Chandel, culminating in their dismissals. The tribunal held that Bungay and Paul were acting as agents for the centre and were jointly and severally liable for compensation in respect of the discrimination.
Saini was awarded £40,420 and Chandel £90,005. These sums included aggravated damages in respect of Bungay and Paul's actions during the disciplinary hearings and after the dismissals. The tribunal found that malicious and unfounded complaints had been made to the police, which resulted in Saini and Chandel being arrested.
The centre subsequently went into compulsory liquidation (it is not clear whether this was related to the case). Bungay and Paul appealed.
The legal decisions
The appeal argued that the tribunal had erred in finding Bungay and Paul to be agents, making them liable for damages and taking into account post-employment conduct when assessing aggravated damages.
The appeal was unsuccessful: the Appeal Tribunal held that Bungay and Paul were agents of the centre because they were authorised to manage it, and that they discriminated against Saini and Chandel in the name of the centre and in their work as board members.
Further, it held that the tribunal was correct to rule they should be liable because they were "prime movers" in the campaign of discrimination. Lastly, it was appropriate to consider post-employment conduct because the discrimination campaign continued after employment had ended, and this could be taken into account when awarding aggravated damages.
Lessons for charities
This case shows that an employer's liability can extend to acts of its agents and underlines the importance of providing training to everyone in an organisation, not just employees.
Aggravated damages may be awarded in discrimination claims where a respondent acts in a manner that aggravates the claimant's injury - for example, in how the claim is defended. This case demonstrates that, when assessing aggravated damages, post-employment conduct can extend to other behaviour if it is sufficiently linked to the discriminatory conduct that forms the basis of the claim. In this case, Saini and Chandel were each awarded £6,500 plus interest.
Victoria Willson is a partner at Levenes Employment, third sector specialists