Discrimination claims can not only be costly for employers but, unlike other claims, they can be brought against the individual discriminator. Prudent employees would bring a claim against both parties because if an employer can rely upon the statutory defence available to them, the claim against them will be struck out but can still proceed against the individual who has no such defence option available to them.
This can have massive implications due to the damages being uncapped, unlike unfair dismissal, and a possible additional award of up to £42,000 for injury to feelings.
A recent case has demonstrated just how far reaching this can be, when it was held that if another person influences a decision-maker in a discriminatory way, they too can be held to be a joint decision-maker.
A male police officer claimed discrimination for being subjected to a criminal investigation, regarding members of his group claiming for overtime not worked. The deputy assistance commissioner responded in a heavy handed way and the officer was subjected to a criminal investigation. However, when similar complaints were made about a group led by a female officer, they were not so investigated. The employment tribunal found that the deputy assistance commissioner had influenced the decision by another officer to subject the officer to a criminal investigation and thus that other officer was not “innocent” because he was fully aware of the discriminatory context and could be considered a joint decision-maker.