Companies, public authorities and any anyone else are normally liable for actions of their employees, or other agents. Furthermore, individuals involved in discriminating against or harassing someone are often personally liable. This page outlines the rules.
Liability of employer
An employer is liable for an act of an employee which is done ‘in the course of employment’, even if the employer did not know about it or approve of it (EqA s.109).
The employer has a defence if it proves that it took such steps as were reasonably practicable to prevent the employee doing the thing, or doing anything of that description (EqA s.109(4), examples in Employment Code para 10.50-10.52 and in the EHRC’s 2020 Sexual harassment and harassment at work: technical guidance para 4.20-4.27 ). Even where the employer has this defence, the employee can still be personally liable – see below Claiming against employee and others involved.
B v John Edward Crowther Ltd (2002), Employment Tribunal
A dyehouse worker suffered ongoing abuse from colleagues related to his stammer. They often laughed and pulled faces at him (he sometimes contorted his face trying to get words out). They made grunting sounds when he was in the vicinity. The managers were aware of this abuse. For example, the assistant manager heard an operative say, “why don’t you do us all a favour and f**k off you stuttering twat.” Also, the tribunal accepted that the behaviour of the operatives had been brought to the attention of the manager. The tribunal held the employer was liable for discrimination.
Note: Nowadays the employer would be liable for harassment; at the time there was no separate claim for harassment. Also, even if the employer did not know of the harassment, it could still be liable unless it proved it took such steps as were reasonably practicable to prevent harassment.
Can include discrimination outside work
The employer can also be liable for discrimination and harassment against employees at work-related events outside the workplace, as these may still be ‘in the course of employment’.
“The phrase ‘in the course of employment’ has a wide meaning: it includes acts in the workplace and may also extend to circumstances outside such as work-related social functions or business trips abroad. For example, an employer could be liable for an act of discrimination which took place during a social event organised by the employer, such as an after-work drinks party.”
Employment Code, para 10.46.
The Employment Code, para 17.65 says that prohibited conduct ‘in the course of employment’ “may extend to discrimination and harassment occurring away from work premises or outside normal working hours where there is sufficient connection with work – for example, at team building days, social events to which all workers are invited, business trips or client events.” There is more detailed consideration of what is ‘in the course of employment’ in the EHRC’s 2020 Sexual harassment and harassment at work: technical guidance from para 4.17.
As to harassment by one worker against another committed outside the course of employment, although the employer is not directly liable under s.109 EqA, the EHRC’s Technical guidance on harassment 2020 at para 4.52-4.53 says that an employer must still take reasonable steps to deal with such a complaint of harassment because of the principles discussed at Harassment of employees>Harassment by third parties, such as customers or suppliers.
Agents
The employer is also liable for agents acting with its authority, even if the employer did not know about or approve of the discrimination: EqA s.109(2). For example an employer might be liable for recruitment agents acting on its behalf.
If the employer is liable, the agent is liable too under s.110: below Claiming against employee and others involved. Note that recruitment agents and some others, such as trainers, may also be liable themselves as providing employment services, whether or not they fall within the agency rules.
The Court of Appeal has held that the employer (or other principal of the agent) is liable wherever the agent discriminates in the course of carrying out the functions the agent is authorised to do, whether the acts in question were specifically authorised or not (Unite the Union v Nailard below at para 19, citing Kemeh below at para 11). The Equality and Human Rights Commission – in its 2020 Sexual harassment and harassment at work: technical guidance, para 4.28-4-30 and para 4.55 – does seem to consider that the employer has scope to escape liability by limiting the agent’s ‘authority’ to discriminate, but if so the borderline is unclear.
Unite the Union v Nailard, Court of Appeal, 2018
An employee of the union claimed for sexual harassment by elected officers of the union who were not employees. The court held the union was liable for the actions of its elected officers as agents under s.109(2).
On other aspects of this case see Harassment of employees>Harassment by third parties, such as customers or suppliers.
However there are limitations on who is treated as an agent:
Ministry of Defence v Kemeh (bailii.org), Court of Appeal, 2014
The claimant was a black person who worked as a chef in the army, at the Falklands garrison. He asked a butcher there for chicken pieces to make soup for a large number of soldiers. She gave him only 2 pieces, and when he queried this she made a racially discriminatory remark. The butcher was employed by a Sodexo, a sub-contractor of Serco which had a contract with the MoD.The army was held not liable for discrimination. The Court of Appeal said the common law concept of agency should apply. This did not mean the agent must have power to alter legal relations, eg an estate agent could be an agent. However, it was not appropriate to describe as an agent someone who is employed by a contractor (Sodexo) simply on the grounds that he or she performs work for the benefit of a third party employer (the army).
The court recognised there was a real risk this could leave the claimant without a remedy under the EqA. He would not have an employment claim against Sodexo. This was a gap in the legislation Parliament might wish to consider. The court raised the possibility, without deciding it, that the claimant might have a claim against Sodexo as a provider of services, albeit the claim would be in the County Court.
My note: Where an employer arranges for another company to provide a service only to the employer’s workers, 31(5) EqA may enable workers to claim against the other company as a service provider under the Equality Act.
In 2020 there was another important case on agency as regards how far a company is liable in civil law (known as “vicarious liability”) for actions of someone who was not an employee of the company, for example for the person’s negligence. The court took a relatively limited view of who the company is vicariously liable for. However it is not clear whether this is relevant for the Equality Act:
Various claimants v Barclays Bank plc (bailii.org), Supreme Court, 2020
A doctor conducting pre-employment medical checks on young female recruits of Barclays Bank was alleged to have sexually assaulted them. The recruits sued Barclays for these assaults, claiming the bank was liable. If the doctor had been an employee of the bank, then the bank would clearly have been vicariously liable for the doctor’s actions. However the doctor was not an employee.The Court of Appeal had held that Barclays was liable, but the Supreme Court held it was not. The Supreme Court said the question was whether the person who committed the wrong (here the doctor) was carrying on business on his own account or whether he was in a relationship akin to employment with the defendant. In doubtful cases, said the court, five factors identified in previous cases might be helpful, but it was not necessary to consider those factors where (as here) it was clear that the person who committed the wrong was carrying on their own independent business.
Claiming against employee or agent (s.110)
Employees and agents for whom the employer is liable (see above Liability of employer) are also personally liable themselves. This is so even if the employer has the defence of having done whatever is reasonably practicable to stop discrimination. (EqA s.110(1)(2)).
From Employment Code para 10.55
A line manager fails to make reasonable adjustments for a machine operator with multiple sclerosis, even though the machine operator has made the line manager aware that he needs various adjustments. The line manager is not aware that she has acted unlawfully because she failed to attend equality and diversity training, provided by her employer. The line manager could be liable personally for her actions as her employer’s action, in providing training, could be enough to meet the statutory defence.
The same applies to claims relating to provision of services, or associations:
From Services Code para 12.34
A black associate member of a former servicemen’s club finds that bar staff make inappropriate and offensive comments related to his race. Unless the club takes all reasonable steps to tackle this behaviour, the associate member would have a claim for harassment related to his race against the club. He will also be able to make a claim against the employees.
Under s.110 It is therefore generally possible to bring any proceedings against the employee(s) involved as well as the employer, e.g. in case the employer manages to avoid liability under s.109(4). Bringing proceedings against a relevant individual as well as the person’s employer can also be useful in order to have that individual attend the hearing.
Defence for employees etc
For employees/agents, and also for people ‘helping’ (below), there is a defence if the person reasonably relied on a statement that the act does not contravene the Equality Act. It is a criminal offence for the employer/principal (or person being aided) to knowingly or recklessly make such a statement which is false or misleading in a material respect. (EqA s.110(3)(4), s.112(2)(3))
Apportionment of liability
Where more than one person is liable for compensation, the claimant will not normally be concerned with any issues how of liability is apportioned between them. On current case law, those found liable will usually be jointly and severally liable. This means that the claimant can recover the whole amount of compensation (once) from anyone held liable. There may be fairly exceptional cases – probably where the damage is ‘divisible’ – where the tribunal decides that those responsible should only be liable to the claimant for a part each. See Hackney v Sivanandan, EAT (bailii.org), upheld by Court of Appeal (bailii.org) in January 2013, and Bungay v Saini (bailii.org), July 2011.
What if one party held liable pays the whole of the compensation to the claimant, but feels he should be reimbursed – at least in part – by another person who is also liable? This was discussed to some extent by the Court of Appeal in Brennan v Sunderland City Council (bailii.org), 2012. As regards apportionment of liability as between service providers who are jointly and severally liable to the claimant, see my comment at the end of Ross v Ryanair.
Instructions and pressure (s.111)
It can be unlawful to “instruct”, “cause”, or “induce” someone else to breach the Equality Act, or attempt to do so. The recipient of the instruction or the intended victim can claim, whether or not the instruction is carried out, provided the recipient or intended victim suffers a detriment as a result. (EqA s.111, Employment Code from para 9.16)
However the person giving the instruction must be in a relationship with the recipient of the instruction etc in which discrimination etc is prohibited – for example a manager putting pressure on another staff member: below S.111(7): relationship between inducer and inducee.
Where conduct gives rise to claims in different courts (eg employment tribunal and County Court) and at least one of the claims is under s.111, a claim can be transferred so that they are both dealt with by the same court (s.140 EqA).
From Employment Code para 9:18:
The managing partner of an accountancy firm is aware that the head of the administrative team is planning to engage a senior receptionist with a physical disability. The managing partner does not issue any direct instruction but suggests to the head of administration that to do this would reflect poorly on his judgement and so affect his future with the firm. This is likely to amount to causing or attempting to cause the head of administration to act unlawfully.
From Employment Code para 9:23:
In the example in paragraph 9.18, if the head of administration were to experience a detriment as a result of the managing partner’s actions, he would be entitled to a remedy against the managing partner. The disabled candidate is also entitled to a remedy if she suffers a detriment as a result of the managing partner’s actions.
From the EHRC’s 2012 Technical guidance on further and higher education, para 3.46:
Example: A training provider has a contract to deliver apprenticeships. The contract stipulates a ‘Minimum Level of Performance’, that is that a certain number of apprentices must complete their framework, otherwise the contract is taken away. Senior management makes it clear to the Apprenticeship Coordinator that they must restrict the number of disabled applicants admitted to apprenticeships because they believe they are less likely to complete their frameworks. In turn the Apprenticeship Coordinator encourages those working in admissions to discriminate against disabled applicants. The Apprenticeship Coordinator would be inducing discrimination because of disability and senior management would be unlawfully instructing him to discriminate. The staff in admissions will be discriminating unlawfully unless they can show that they are reasonably relying on a statement that what they are doing is not in contravention of the Act. If the management or the coordinator knowingly or recklessly makes such a statement which is false or misleading, they will be committing a criminal act punishable by a fine.
These provisions do not affect the fact that the person who discriminates is liable under the Equality Act. Rather, these provisions add a further claim against someone giving instructions etc.
S.111(7): relationship between inducer and inducee
Broadly speaking, s.111(7) EqA says that s.111 only applies if the person giving the instruction etc is in a relationship with the recipient of the instruction etc in which discrimination etc is prohibited. The detailed wording is a bit more complex, involving the definition of what the EqA calls a “basic contravention”.
Where these two are an employment relationship, s.111(7)) is not likely to be a problem:
Example: Take the examples above in para 9.18 and 9.23 of the Employment Code. I think that in s.111(1) EqA the accountancy firm (employer) would be person A, the head of the administrative team would be B, and the job applicant (potential receptionist) would be C. Under s.109 EqA (above) what the managing partner says is treated as said by the firm, as the latter’s agent if not employee. Assuming the head of the administrative team (B) is an employee of the firm (A), there is clearly a relationship between them such that A could commit a “basic contravention” in relation to B, ie breach the employment provisions in Part 5 EqA. So s.111(7) is satisfied. As well as the firm itself being liable, the managing partner (as regards the breach of s.111) and head of the administrative team (as regards ‘normal’ discrimination within s.13 or s.15 EqA) may also be personally liable under s.110 (above).
However what about an employer encouraging a university not to send them disabled students for a university work placement? Or what about a professional body setting competence standards to be met by a university degree taken by those wanting to enter the profession, if these standards are unjustifiably discriminatory? These are situations which one might expect to fall within s.111, but which will not be if one cannot find a way to argue s.111(7) is satisfied. If blocked by s.111(7), one can of course consider whether alternative possible claims are available, including one body acting as agent of the other within s.109 and 110 above, or one body “helping” the other within s.112 below.
Failure to carry out instructions etc – discrimination by association
A person should be able to claim for direct discrimination or harassment if this results from their refusal to comply with instructions to discriminate etc. The argument is that the discrimination or harassment is ‘because of’ or ‘related to’ a disability, albeit someone else’s. See Going wider than discrimination by association.
“Helping” to breach the EqA (s.112)
It is also unlawful to knowingly help another to do something contravening (most of) the provisions of the Equality Act (EqA s.112, Employment Code from para 9.25).
Two 2001 House of Lords cases on a similar provision in the Race Relations Act 1976 should still be relevant. Essentially “help” is given its normal meaning, but it must be help to do the unlawful act, rather than just helping in some way:
Hallam v Cheltenham Borough Council (parliament.uk), House of Lords, 2001
A bride’s mother contracted with the Council to hire a venue for the wedding reception. Her husband (and so the bride’s father) was of Romany gipsy origin. Local police “had had some trouble with gipsies” earlier that year. They had concerns there might be disorder at the reception, and communiciated their concerns to the Council. The Council shared the police’s fear “that the reception might attract large numbers of gipsies from all over the country, with a risk of disorder and serious damage to persons and property”. The Council decided to impose new conditions on the booking, including that entry to the reception should be restricted to those holding pre-issued tickets. The bride’s mother was unwilling to accept the new terms, and the reception was held elsewhere.The mother and bride succeeded in County Court claims against the Council for breach of contract, and for discrimination contrary to the Race Relations Act 1976. However the County Court rejected their claim that three police officers were also liable under s.33(1) of the 1976 Act, for having “knowingly aided” the Council to do the unlawful act of discriminaton. (S.33(1) was a predecessor of s.112 EqA.)
The House of Lords said the unlawful act here was denying to the mother and bride, because they were gipsies, the use of the venue on the same terms as would have been available to non-gipsies, and so treating them less favourably. Did the police officers aid the Council to do that unlawful act? The County Court had recognised that the police officers were, in a general sense, being helpful to the Council. They had supplied the Council with information to alert it to what the police officers considered a serious potential problem, and their general relations with the Council were friendly and co-operative. However the County Court judge had pointed out that s.33(1) requires more than a general attitude of helpfulness and co-operation. “As he accurately put it, ‘The Act requires them to have knowingly aided the council to do an act made unlawful by the Act'”.
The County Court judge had been entitled to decide (though he did so with hesitation) that the clamants had failed to show the police officers aided the Council to do the unlawful act in question, because neither officer was a party to or involved in the making of the council’s decision. There were plainly a number of different ways in which the Council could have reacted to the information supplied by the police officers, if the Council chose to react at all, several of which responses would have been lawful.
The House of Lords said it did not follow from this conclusion that where a party gives information to another on which the other relies in doing a discriminatory act the first party can never be liable under s.33(1). The outcome of cases such as this would almost always turn on the facts. Lord Millett gave the example that if a gang of youths, brandishing weapons and shouting racist abuse, were chasing after a suitable victim who then found a place to hide, a bystander (realising what the youths intended) who betrayed the victim’s hiding place to them would be aiding them to do their victim injury, if that is what they did.
The House of Lords thought it best not to discuss the extent of the knowledge which an aider must have. The House said it may be that in most cases (as in Anyanwu v South Bank Student Union below) there will be little doubt that aid was given “knowingly” if it is found to have been given at all.
Anyanwu v South Bank Student Union (parliament.uk), House of Lords, 2001
The two claimants were students at South Bank University. Following elections, they became salaried officers of the Student Union and as such were trustees of the union’s funds. The university raised questions about their conduct as trustees and eventually expelled them from the university. It was now impossible for them to perform their duties as employees of the student union as they were unable to enter its premises, and the union treated their employment contracts as at an end. The two officers claimed race discrimination against the Student Union for terminating their employment, contrary to the Race Relations Act 1976. Also (like in the Hallam case above) they claimed the university had “knowingly aided” this act of discrimination contrary to s.33(1) of the 1976 Act.The House of Lords discussed the meaning of “aids” at some length, saying the word should be given its normal everyday meaning of “helps” or “assists”. The Law Lords were unanimous that the case should be allowed to proceed to be heard on the evidence (ie it should not be struck out), but some Law Lords were less convinced than others that the alleged facts could satisfy s.33(1).
There is a defence if the person reasonably relied on a statement that the act does not contravene the Equality Act: above Defence for employees etc.
Claims by police officers
See Employee, workers and beyond>Claims by police officers, including the 2017 Supreme Court decision in P v Commissioner of Police of the Metropolis which re-interpreted s.42 Equality Act to facilitate employment tribunal claims against Chief Constables in respect of acts of police misconduct panels.
