Who is liable under the Equality Act?

Companies, public authorities and anyone else are usually liable under the Equality Act 2010 (EqA) for actions of their employees, or agents. Furthermore, the employee or agent who actually discriminates etc can be personally liable.

Summary

• An employer is normally liable for acts of its employees done in the course of employment. This can include things done outside work, eg at a work-related social event. Below Liability for actions of own employees/workers (s.109).
• A company, public authority or anyone else is also liable for something done by its agent acting with its authority. It is sometimes difficult to decide whether this applies. Below Agents.
• In either of those cases, the employee or agent can also be personally liable for the discrimination. Below Claiming against employee or agent (s.110).
• In the normal case where damage is indivisible, the respondents (eg the employer and any individual who discriminated) are jointly and severally liable for compensation. So each is 100% liable to the claimant (unless already paid). In employment cases, it is not clear that a respondent who has paid out can claim a contribution from another respondent. Below Apportionment of liability (England and Wales).
• There is a separate page on Instructing or causing discrimination, or helping it.
• From October 2026 an employer may also be liable for permitting harassment of its staff by third parties, ie by people who are not its employees or agents: Third party harassment change.

Liability for actions of own employees/workers (s.109)

Anything done by a person (A) in the course of A’s employment is treated as also done by the employer (EqA s.109(1)). So a company, public authority or any anyone else is liable for an act of its employee (including a worker) done ‘in the course of employment’. That applies even if the employer did not know about the act or approve of it (s.109(3)).

The employer has a defence if it proves it took all reasonable steps to prevent such things: below Employer’s defence of having taken reasonable steps.

B v John Edward Crowther Ltd, Employment Tribunal, 2002
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 under the Disability Discrimination Act 1995.

Note: Nowadays under the EqA the employer would be liable for harassment. At the time there was no separate claim for harassment. 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: ‘in the course of employment’

For an employer to be liable under s.109 for actions of its employee (including a worker), the actions need to be in the course of the employee’s employment. This does not mean they need to be in work time, or in the workplace. They could potentially be at a work-related social function, for example (as in Stubbs below, but contrast Sidhu).

In AB v Grafters Group (bailii.org), [2025] EAT 126 (summary below), the EAT set out 13 key points it took from s.109 and case law (§13). It stated that (§§30-32):

• Generally, the starting point will be to consider whether the alleged perpetrator was at work, in working hours carrying out work activities.
• If the perpetrator was not, the tribunal needs to consider whether there was ‘nevertheless a sufficient nexus or connection with work such as to render it in the course of employment’ including whether the activity was an ‘extension of work and the workplace’.

The EAT in Grafters reiterated (from previous case law) that whether something is ‘in the course of employment’ is a question of fact for each tribunal to resolve in the light of the circumstances presented to it. The EAT said this can lead to different decisions in circumstances that appear similar. Although much may turn on the tribunal’s assessment of the individual circumstances (see particularly Sidhu below), the following are some examples of appeal decisions:

Waters v Commissioner of Police of the Metropolis [1977] ICR 1073, Court of Appeal
A sexual assault was committed by a male police officer against a female colleague at a police section house where she had a room, when both were off-duty. This was found not to have been done in the course of employment.

The Court of Appeal said: ‘He lived elsewhere and was a visitor to her room in the section house at the time and in circumstances which placed him and her in no different position from that which would have applied if they had been social acquaintances only with no working connection at all.’ In these circumstances, it was inconceivable that any tribunal applying the proper test could find that the alleged assault was committed in the course of the male police officer’s employment.

Chief Constable of Lincolnshire Police v Stubbs [1999] ICR 547, EAT
A male police officer sexually harassed a female colleague at a pub, where officers had gathered socially after the conclusion of their duties. He was held to be acting in the course of employment.

The EAT concurred with the findings of the tribunal that the two incidents, although ‘social events’ away from the police station, were extensions of the work place. Both were social gatherings involving officers either immediately after work, or for an organised leaving party.

It would have been different had the discriminatory acts occurred during a chance meeting between the perpetrator and the claimant at a supermarket.

Sidhu v Aerospace Composite Technology (bailii.org) [2001] ICR 167
The Court of Appeal upheld a tribunal decision that racial abuse by a white colleague at a family day out at a theme park was not done in the course of employment.

The event was organised by the employer. However, the tribunal considered it significant that it was not in the place of employment but at a public theme park, that everyone was there in their own time, and that the majority of the participants were friends and family rather than employees.

The Court of Appeal recognised that another tribunal could properly have decided that the incident was in the course of employment. However, it was impossible to say that no tribunal could have reached the conclusion that it was not.

Note: The Court of Appeal effectively said that this was a case where the tribunal could have decided either way, without being overturned on appeal.

Livesey v Parker Merchanting (bailii.org), EAT, 2004
The claimant’s depot manager had made sexist remarks for some months, to or about her. Things came to a head at the employer’s Christmas party, and in a lift home from it. A colleague was driving the claimant home, and the manager got in the back of the car with her, and physically harassed her during the journey.

A tribunal found that the sexual harassment in the workplace and at the party was in the course of the manager’s employment. However, it found by a majority that the harassment during the car journey was not.

The EAT disagreed, regarding the car journey. There was no justification for drawing a distinction between the Christmas party and the journey immediately afterwards. The manager had embarked on a course of sexual harassment which, as the tribunal found, had become cruder and more offensive as time went by, and had culminated in the events during and after the party. It was all part of a course of conduct pursued by the manager. (§§20-21, §15)

Although the harassment was all in the course of the manager’s employment, the EAT upheld the tribunal decision that the employer was not liable, as it could rely on the defence in s.109(4) of having taken all reasonable steps to prevent such actions, given it did not know of the manager’s activities. The EAT clearly considered the claimant should have also claimed against the manager, who could be personally liable under s.110 below.

Forbes v LHR Airport (bailii.org) , EAT, 2019
Ms S posted an image of a golliwog on her private Facebook page. It was shared with Facebook friends, including a work colleague BW, who showed it to the claimant. The EAT upheld the tribunal decision that any racial harassment by Ms S was not done in the course of her employment. The EAT discussed at §§26-27 the difficulties of deciding whether things on social media are in the course of employment.

BW’s act of showing the image to the claimant in the workplace might be seen as done in the course of BW’s employment. However, that was not the claim made, and was not an issue put to the tribunal.

AB v Grafters Group (bailii.org), [2025] EAT 126
The employer was a hospitality recruitment agency. The claimant AB thought (wrongly) that she had a bar work assignment for the employer at Hereford Racecourse. She missed her transport at 6:30am. A colleague, CD, offered her a lift. He was not at work, and not due to work at Hereford. En route they discovered she was not due to work. He refused to drop her at a bus stop. He drew in and sexually harassed her.

The EAT set out the tests above. It held that the tribunal had wrongly only considered whether CD was at work at the time. The EAT sent the case back to the tribunal to consider also whether CD’s provision of the lift had a sufficient nexus or connection with work, and/or constituted an extension of work and the workplace or working activities. For this, the tribunal should analyse various other factors (set out at §32), for example that CD had sent AB messages – partly of a sexual nature – over the previous night while he was working a shift for the employer (which ended between 3am and 4am), and whether that formed part of a course of conduct with the sexual harassment.

Note: Livesey above is a case where the harassment was held to be all part of a course of conduct pursued by the perpetrator.

The issue is whether the actions are in the course of the perpetrator’s employment, not that of the victim. So in Grafters above, even if AB had been due to work at Hereford, that did not mean the lift was necessarily in the course of CD’s employment (Grafters at §§13.2, 32).

S.109(3) states that it ‘does not matter whether that thing is done with the employer’s … knowledge or approval’. The EAT in Grafters above said ‘that thing’ is the act of discrimination or harassment. S.109(3) does not mean that the employer’s knowledge or approval in a more general sense is wholly irrelevant to whether something is in the course of employment.

‘… So, for example, if an event after work is organised by the employer who knows and approves of the attendance of their employees, and an act of sexual harassment occurs at the event, the fact that the employer knew and approved of the alleged harasser A’s attendance might be relevant to the question of whether A was acting in the course of employment although it would not matter that the employer did not know or approve of the act of harassment, which would be the “thing” for the purpose of the legislation.’
AB v Grafters Group (bailii.org), [2025] EAT 126, at §14.

The Court of Appeal in Jones v Tower Boot Co (bailii.org) [1997] ICR 254 said that ‘in the course of employment’ in discrimination legislation should not be interpreted in the same way as the common law test for vicarious liability in tort, eg negligence. However the common law test was widened in 2001, and is now closer to the EqA test than it was at the time of Tower Boot. In Livesey, 2004, above the EAT considered the common law test as regards a claim for constructive dismissal, as well as the discrimination law test for the discrimination claim (holding both tests were fulfilled).

If harassment by one worker against another is committed outside the course of employment, see Harassment of employees>Harassment by third parties, such as customers or suppliers.

Code of Practice and technical guidance on ‘in the course of employment’

These presumably aim to reflect the case law above.

‘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 2024 Sexual harassment and harassment at work: technical guidance from para 3.48.

Employer’s defence of having taken reasonable steps

The employer is not liable under the EqA for acts of an employee if it proves that it took all reasonable steps to prevent the employee doing the thing, or from doing anything of that description (EqA s.109(4)).

There are examples in the Employment Code para 10.50-10.52 and in the EHRC’s 2024 Sexual harassment and harassment at work: technical guidance para 3.49-3.58.

Even if the employer successfully relies on this defence, the employee can still be personally liable under s.110: see below Claiming against employee and others involved.

Staff who are not own ’employees’: eg volunteers, agency staff

S.109(1) EqA specifically refers to A’s ’employment’. Therefore, for the employer to be liable for someone’s acts under s.109(1), it seems that the person must fall within the definition of employee/employment in s.83(2)(3) EqA (which includes a ‘worker’): see Employees, workers and beyond>Technical note: statutory definitions of “worker”. I give below some examples of staff who may look like employees but technically are not.

However, I suggest that (non-employee) staff who are integrated into an employer’s operation – at least if not employed by a contractor to which services have been contracted out (often excluded under Kemeh, below) – may well be seen as the employer’s ‘agents’ (below Agents), so that both the employer (under s.109(2)) and the agent (under s.110, below) are liable for discrimination while acting within the agent’s remit.

• That is especially so if the staff deal with third parties (as do eg staff in call centres, or security guards searching bags at an entrance?), or if the staff deal with other staff in relation to the latter’s personnel matters – so that, in either case, it could be said they are representing the employer.
• As to staff supplied by an employment agency, I suggest that when the Court of Appeal in Kemeh at §43, below talked of ‘very cogent evidence’ being required for an employee of A to be an agent of B, it was not thinking of agency staff where the individual will not normally be employed by the agency (other than under the extended EqA definition) and will be managed by B.
• In Anderson v CAE Crewing, 2024, below, an EAT said that one guide to whether doctors conducting medical assessments were agents acting on the employer’s behalf might be whether they were in reality company doctors (such as might be employed by the employer), or whether they were truly independent practitioners from whom an expert opinion was sought.
• However, there is a lack of case law on whether (non-employee) staff integrated into an employer’s operation are generally agents within s.109(2) EqA.

The range of situations in which employers are liable for non-employee staff may be less than for employees. For discrimination by employees, ‘in the course of employment’ can extend to some social events outside work, for example (above Can include discrimination outside work: ‘in the course of employment’). Liability for someone as an agent under s.109(2) might not extend that far.

For non-employee staff in respect of whom the employer is liable under s.109(2) (agents), the employer does not have the defence under s.109(4) of having taken reasonable steps to prevent the discrimination. That defence only applies to s.109(1) on employees. (But see below Can the principal limit the agent’s authority to discriminate?)

Examples of staff who may not be an ’employee’

These are some people who might look like ’employees’ within the EqA but technically may not be:

• A volunteer will normally not be an ’employee’ within the EqA, though exceptionally they may be: Volunteers and interns>Legal contract to do work. But of course they could still be an agent within s.109(2).
• People on work experience are often protected by the EqA even without being ’employees’: Volunteers and interns>Work experience, including interns. But even if protected by the EqA in respect of discrimimation against them, it seems that as regards discrimination by them, s.109(1) will only apply if they are employees. (However, as discussed above, the employer may be liable for them under s.109(2), on agents.)
• Agency staff contracted to an employment agency rather than being employed by the company actually using them, even though they may look very much like the latter’s employees and are managed by it. They are likely to have EqA rights against the company using them (as Contract workers). However, it seems that normally this company will not be liable for them as an employer under s.109(1) – but again it may be liable under s.109(2) on agents. (The agency contracting with the staff may perhaps be liable under s.109(1).)
• Staff employed by another group company: the same should apply as for agency staff, at least if seconded to the group company using them.

Agents

Anything done by an agent for a principal, with the authority of the principal, must be treated as also done by the principal (EqA s.109(2)). ‘Principal’ is just a legal term for the person on behalf of whom the agent acts.

So a company, public authority or anyone else is liable under the EqA for something done by its agent acting with its authority. It does not matter whether the company etc knew about, or approved of, the discrimination (EqA s.109(3)).

If the company etc is liable under s.109(2), 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 in their own right as employment service providers, whether or not they fall within ss.109-110 as agents.

Who is an agent within s.109(2)?

The leading case on this is Ministry of Defence v Kemeh, 2014, below, which held common law principles of agency to be relevant. Some examples:

• In Handa v Station Hotel (Newcastle), 2025, below (on whistleblowing, but a similar test applies), the EAT said that external HR consultants appointed by an employer to conduct an investigation and disciplinary hearing were arguably agents as regards actions within their remit.
• In Anderson v CAE Crewing, 2024, below, on medical assessments, an EAT said one guide might be whether the doctors were in reality company doctors (such as might be employed by the employer), or whether they were truly independent practitioners from whom an expert opinion was sought.
• In Unite the Union v Nailard, 2018, below, elected union officials were held to be agents of the union in a wide variety of functions, such as meetings/negotiations with managment, in which they had sexually harassed the claimant
• In Ministry of Defence v Kemeh itself, a butcher employed by a sub-contractor of the army at the Falklands garrison – handing out meat to an army chef – was held clearly not to be an agent of the army. It was not enough that someone (the butcher) employed by a contractor performed work for the benefit of a third party employer. Typically, even the army’s own staff would not be the army’s ‘agents’.
• In Bungay v Saini (bailii.org), EAT, 2011, members of the board of an advice centre (who were not employees), were held to be covered by a predecessor of s.109(2), when they discriminated against staff of the centre.
• In Commissioner of Police of the Metropolis v Weeks (bailii.org), EAT, 2011, a police officer from a different police force, line managing a civilian employee, was held to be an agent of the civilian’s employer.

The Kemeh case illustrates that s.109(2) is narrower than one might expect. A very rough guide might be whether the (possible) agent is acting on behalf of the principal, rather than just providing a service such as catering, or perhaps training.

However, the agent need not have power to contract on behalf of the principal. The agent could be someone, such as an estate agent, who merely introduces or canvasses custom on behalf of the principal (Kemeh, below).

The estate agent example ties in with Anderson v CAE Crewing (2024) below, which held that the agent can be an independent contractor carrying on business on their own account. There need not a relationship akin to employment with the principal.

Example: A holding company provides human resources services to a subsidiary. There is a complaint of misconduct against an employee of the subsidiary. Staff of the holding company conduct an investigation and disciplinary procedure on behalf of the subsidiary.

I suggest that in doing this, the holding company (and perhaps its staff) are likely to be agents of the subsidiary within s.109(2) EqA – for example, if they fail to make reasonable adjustments in disciplinary hearings.

Note: Similarly it seems an external HR consultant conducting, say, a disciplinary hearing may be an agent for acts within its remit: below Handa v Station Hotel (Newcastle), EAT, 2025.

See also above Staff who are not own ’employees’: eg volunteers, agency staff, as to the possibility of these being agents within the EqA.

‘With the authority of’ the principal

The Court of Appeal has held that the company etc (the ‘principal’) is liable under s.109(2) wherever the agent discriminates in the course of carrying out the functions the agent is authorised to do, whether or not the discriminatory acts (or harassment etc) were specifically authorised: Unite the Union v Nailard below, at §19, citing Kemeh below, at §11.

In Unite, the elected trade union officials were authorised to conduct negotiations with managment, for example. Accordingly the union was liable under s.109(2) when the officials sexually harassed a union staff member in those meetings.

Also the Court of Appeal in Unite rejected an argument by the union that the harassment etc had to be towards third parties, because (argued the union) it was only in relation to such acts that the officals could be said to be acting ‘with the authority of the principal’.

Can the principal limit the agent’s authority to discriminate?

The reasonable steps defence above only applies to employees, not to principals for acts of their agents.

Also s.109(3) states that it does not matter whether the thing (the discrimination etc) is done with the principal’s knowledge or approval. The EAT has stated:

A principal cannot avoid responsibility for acts done with his authority merely by saying to his agent ‘Of course you must not do anything illegal’ or (in the context of the Equality Act) ‘Of course you must not do anything against equality law’. …
Unite the Union v Nailard(link to ‘Discrimination being contrary to union policy’)

The EAT in Unite said that such a statement by the principal would not limit the scope of the agent’s authority to act on the principal’s behalf, at least for the purposes of s.109(2). Accordingly the EAT rejected the union’s argument that it could not be responsible for the discriminatory acts of its elected officials because these were contrary to union policy.

However, an example in Technical guidance by the Equality and Human Rights Commission suggests that limiting the agent’s authority can sometimes restrict liability under s.109(2):

3.61 An employer will not be liable for harassment carried out by its agents where the agent has acted without the employer’s authority. For example, where the employer provides instructions for the agent to follow, and the agent acts contrary to those instructions.

Example:
A housebuilding company (the employer) uses a recruitment agency to recruit a site supervisor. The employer asks the agency to sift CVs, undertake right to work in the UK checks and do an initial telephone interview. The employer asks the agency to follow its equality and diversity and anti-harassment policies. It also agrees a set of criteria against which candidates are to be judged during the interview. An agency employee checks identity documents and sees that one of the candidates is a trans man. During the interview, the agency asks this candidate a series of questions about his gender identity and questions his ability to ‘command the respect of the men’ on site. This is contrary to the criteria provided by the employer and the employer’s policies. The agency has acted without the employer’s authority and the employer would not be liable for the harassment. The agency would, however, be liable.

EHRC 2024 Sexual harassment and harassment at work: technical guidance, para 3.61

That is evidently the EHRC’s view, but it would be interesting to see what the courts decided in a similar case. In any event, the EHRC does not say it would be enough for the principal to ask that its equality and diversity and anti-harassment policies be followed (that would surely run counter to the EAT decision in Unite). Rather, in the EHRC’s example, the employer has also agreed with the agency a set of criteria against which to judge candidates, and the agency has departed from those criteria.

The EHRC says that the agency would be liable for its discrimination even though the employer is not. On these facts, the agency should indeed be liable to the candidate as providing employment services, but only because the particular service meets the definition for that. S.110, below, does not seem to apply to make the agent liable, if the principal is not liable. So if the actions of the agent do not fall within other specific EqA provisions, such as employment services, it seems that on the EHRC’s view there will be no EqA claim against anyone.

Rather than there potentially being no claim at all, the policy arguments, at least, seem to me in favour of the principal being liable, given that (a) the principal is selecting someone else to carry out activities for which it would be liable under the EqA if it did them itself, and (b) the principal (if not to blame) will doubtless have a right to claim damages against the agent if the latter’s discriminatory acts lead to a compensation claim against the principal.

Some cases on agents and s.109(2)

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 its employees. The Court of Appeal held that the union was liable for the actions of its elected officers as agents under s.109(2).

The EAT had already held that the employment tribunal was entitled to find the elected officials were acting as agents for the union because they were carrying out work on its behalf in their dealings with local members, officers, other trade unions and employers. Also, the harassment had taken place particularly in meetings, and the tribunal was entitled to find that the officials were acting within the scope of their authority when speaking at meetings concerning, for example, matters to be negotiated with Heathrow Airport.

In the Court of Appeal, the union accepted that the elected officials were its agents, and that the acts complained of were done by them in the course of functions which they were authorised by the union to perform. The Court of Appeal rejected the union’s additional argument that to fall within s.109, the acts had to be towards third parties, because (argued the union) it was only in relation to such acts that the officals could be said to be acting ‘with the authority of the principal’. The Court of Appeal held that the union was liable under s.109 for the harassment of its employee, even though the claimant was not a third party.

On other aspects of this case see Harassment of employees>Harassment by third parties, such as customers or suppliers.

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 two 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, as the butcher was not its agent within s.109 EqA. The Court of Appeal said that the common law concept of agency was relevant. The discrimination law test must at least reflect the essence of the legal concept of agency. This did not mean the agent must have power to alter legal relations. The agent could be a person, such as an estate agent, who merely introduces or canvasses custom on behalf of the principal without having the power to bind the principal contractually.

Whatever difficulties there might be applying the test in marginal cases, the court was satisfied that no question of agency arose in the present case. It could not be appropriate to describe as an agent someone who is employed by a contractor simply on the grounds that he or she performs work for the benefit of a third party employer (the army). She was no more acting on behalf of the employer (the army) than its own employees were. Even its own employees would not typically be treated as agents (subject to their particular role).

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 which 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.

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 EqA.

In Kemeh at §43, the Court of Appeal thought that to argue an individual employed by A was an agent of B in relation to the same transaction would ‘require very cogent evidence to show that the duties which an employee was obliged to do as the employee of A were also being performed as an agent of B’.

In Various claimants v Barclays Bank, 2020, the Supreme Court held that whether a bank was liable in tort (not under the EqA) for acts of a doctor doing pre-employment medicals depended on whether he was carrying on business on his own account (he was in that case, so the bank was not liable), or whether he was in a relationship akin to employment with the bank. However, the EAT has since held that the test is different for s.109(2) EqA. In particular, an agent within s.109(2) may be an independent contractor:

Anderson v CAE Crewing, EAT, 2024
The employer supplied cabin crew to airlines. Cabin crew needed Fit to Fly certificates issued by Aviation Medical Examiners (‘AMEs’) approved by the Civil Aviation Authority. The employment tribunal (ET) held that AMEs were independent of the employer and CAA.

The claimant brought proceedings against her employer in respect of acts by AMEs which she claimed were disability discrimination. The ET applied Various claimants v Barclays (above), and held that the doctors were not agents of the employer within s.109(2) EqA. The ET said there was nothing akin to an employment relationship – they were independent doctors with a portfolio of clients and patients.

The EAT upheld the claimant’s appeal. The ET had applied the wrong test, and the case should be reconsidered by an ET. Baroness Hale in Barclays had decided that the bank was not vicariously liable because the doctor was genuinely an independent contractor, rather than in a relationship akin to employment. However, the EAT said that certainly in the commercial context, there was nothing unusual in an agent being an independent contractor, and many agents had corporate identity. [§27-28]

In the present case, the question would be whether the doctor was acting on behalf of the principal (the employer) pursuant to authority vested by the principal, as opposed to acting independently, the airline paying for the provision of that independent service. This was likely to turn on the specifics of the relationship, and any statutory or regulatory context within which it occured. One guide to this assessment might be whether the doctors were in reality company doctors (such as might be employed by the employer), or whether they were truly independent practitioners from whom an expert opinion was sought.

The EAT accepted that the factors relied on by the ET in concluding that the doctors were independent contractors could be highly relevant to the determination of whether they were acting as agents within s.109(2) EqA.

Whistleblowing cases

The EAT in Hoppe v HMRC (bailii.org), 2021, held that the reasoning in Kemeh above is equally applicable when considering whether – under the rules on whistleblowing (‘protected disclosures’) – something is done by an agent of the employer with the employer’s authority, within s.47B(1A)(b) Employment Rights Act 1996 (ERA 1996). In Handa v Station Hotel (Newcastle), below, another whistleblowing case, the EAT took into account EqA cases more generally. This should mean that similarly whistleblowing cases are relevant when considering s.109(2) EqA. The Handa case is interesting as regards formal HR procedures conducted by external people:

Handa v Station Hotel (Newcastle) (bailii.org), EAT, 2025
Following his appointment as a director, the claimant made allegations of financial impropriety relating to the running of the business (which were disputed). A number of staff raised grievances against him, for bullying and harassment. He was dismissed following disciplinary proceedings relating to the grievances. He claimed under whistleblowing legislation, presumably arguing that the dismissal was because of the allegations he made.

In the disciplinary proceedings against him,

• one HR consultant was appointed to investigate the grievances, and found two grievances to be substantiated. This consultant recommended (but made clear it was only a recommendation) that those matters proceed to a disciplinary hearing.
• Another HR consultant was asked to conduct a disciplinary hearing, and reported back that the employer would be ‘justified’ in dismissing the claimant for gross misconduct. But the tribunal said she did not recommend this as a sanction. In any event, the employer was free to decide what to do.

The employer decided to dismiss the claimant. An appeal to the employer against that was dismissed following a hearing and report from an external solicitor.

The issue on this appeal to the EAT was whether the tribunal had been right to strike out the claim that the two HR consultants were liable as agents of the employer under s.47B(1A)(b) ERA 1996. The appeal failed. The EAT upheld the strike-out, as it was not arguable that the two HR consultants were liable as agents for the dismissal, which was what had been claimed against them.

However, the EAT did say that the tribunal erred in concluding it was not arguable that these consultants acted as agents of the employer in respect of the carrying out of their respective remits – to investigate, report and recommend (§89). The EAT said:

’68. In summary, within the context of an employment relationship, where the complaint relates to the conduct of someone acting on behalf of an external provider, the material issue is whether the services that they are contracted to provide relate to a significant aspect of the employment relationship, rather than some other aspect of the employer’s business or activities. Taking that approach, someone who incidentally comes into contact with employees in the course of providing a contracted service to their employer, which is itself unrelated to an employment relationship, is unlikely to be regarded as an agent for these purposes. But I do not see why a person who is retained to carry out an employment-related procedure, such as a grievance or disciplinary investigation, could not be regarded as the employer’s agent in the course of carrying out those functions.’

Among other things, the claimant’s lawyer had pointed out that the employer’s grounds of resistance to the unfair dismissal claim relied on the procedures followed by the two HR consultants as its own, in support of its contention that the dismissal was fair (§62).

On this basis it may well be possible to argue, for example, that if an external consultant conducting a disciplinary hearing fails to make reasonable adjustments, the consultant is acting as the employer’s agent under the EqA, so that both are liable, under EqA s.109(2) and s.110 (Grievance and disciplinary procedures).

Claiming against employee or agent (s.110)

Employees and agents for whom the employer is liable under s.109 (above Liability for actions of own employees/workers and Agents) are also personally liable themselves (EqA s.110(1)). This is so even if the employer has the reasonable steps defence – of having done whatever is reasonably practicable to stop discrimination (EqA s.110(2)).

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.
Employment Code para 10.55

The tribunal or court does not have a discretion to exempt an employee from liability, if the statutory conditions in s.110 are met:

Baldwin v Cleves School (bailii.org), [2024] EAT 66
The employment tribunal found a school liable for disability discrimination. However it found that two staff members who commited the discriminatory acts were not liable under s.110 EqA. Although their acts were discriminatory and in part ‘misguided’, the tribunal did not consider the acts to be ‘anything other than attempts to address a complex situation’.

On appeal, the EAT held that the individuals were liable. The individuals did not argue they had any defence under s.110(3) below. Therefore, since the school was liable under s.109(1) EqA, the individuals must also be liable under s.110. The EAT said s.110 confered no discretion on a tribunal not to find a contravention by the individual, if the conditions for individual liability under it were met.

Similarly employees and agents are liable under s.110 in claims relating to provision of services, or associations:

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.
Services Code para 12.34

Under s.110 It is therefore generally possible to bring any proceedings against the employee(s) involved as well as the employer, eg in case the employer manages to avoid liability under s.109(4) (as in Livesey above). 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 and agents: reasonable reliance

For employees and agents, there is a defence if the employee or agent reasonably relied on a statement by the employer or principal that the act does not contravene the EqA. It is a criminal offence for the employer/principal to knowingly or recklessly make such a statement which is false or misleading in a material respect. (EqA s.110(3)(4)).

Instructing or causing discrimination, or helping it

Under s.111 EqA it can be unlawful for a person to ‘instruct’, ’cause’, or ‘induce’ someone else to breach the EqA in relation to someone else.

Also under s.112 it is also normally unlawful to ‘knowingly help’ someone breach the EqA.

See Instructing or causing discrimination, or helping it.

Apportionment of liability (England and Wales)

Summary on apportionment

In the normal case where damage is indivisible, the respondents (eg the employer and any individual who discriminated) are jointly and severally liable for compensation. So each is 100% liable to the claimant (unless already paid). Even so, enforcing employment tribunal awards can be a problem.

In employment cases, it is not clear that a respondent who has paid out to the claimant can recover a contribution from another respondent: below Contributions as between respondents. However, this does not affect the claimant’s rights.

This section on apportionment focuses on England and Wales. The position may be different in Scotland. Certainly Scotland has different legislation instead of the Civil Liability (Contribution) Act 1978.

Same discrimination or damage: joint and several liability

Two or more people may be found liable under the EqA for the same discriminatory act, often the employee who actually did the act (liable under s.110 above) and the employer liable for it under s.109(1).

Or different discriminatory acts may cause the same damage. For example a former employer gives a damaging job reference because the claimant made a discrimination claim (victimisation), and the potential employer receiving the reference withdraws a job offer for the same reason (§18 in Hackney v Sivanandan below).

Here the respondents – eg in the first example, the employer and their employee who actually did the act – are jointly and severally liable for compensation awarded. So each is 100% liable to the claimant. The claimant can recover the whole amount from any of them, as the claimant chooses, so far as the claimant has not already recovered from another respondent. (Contrast belowIf damage is ‘divisible’.)

The authority for this, as regards employment tribunals, is LB Hackney v Sivanandan (bailii.org), EAT, 2011 (the point was not disputed in the Court of Appeal (bailii.org), which referred to the EAT’s ‘lucid analysis of the law’), and Bungay v Saini (bailii.org), 2011 and Catanzano v Studio London (bailii.org), 2012 which followed the Hackney v Sivanandan decision. The previous practice was that even where there was a single act of discrimination, an employment tribunal had discretion to apportion compensation, in the sense that the claimant could recover a stated amount but no more from a particular respondent (perhaps an individual). But this has now been held to be wrong, if damage if indivisible. (Note: The EAT in LB Hackney did not make a definitive determination on splitting awards between employer and employee respondents (§§23-24), but the above approach of joint and several liability where damage is indivisible seems likely to be followed there too.)

Outside of employment tribunals, the Court of Appeal made a joint and several award in Ross v Ryanair, below against two service providers (an airline and airport), both of whom unlawfully discriminated in failing to provide a free wheelchair for the claimant.

So the claimant can recover 100% from any of the respondents. What about adjustment payments between the respondents themselves, so that each bears only a fair proportion of the cost? See below Contributions as between respondents.

Problems enforcing tribunal awards

Despite respondents normally being jointly and severally liable for compensation, enforcing employment tribunal awards can be a problem: Remedies in employment disputes: Compensation and recommendations>Enforcement: will I actually receive the compensation?

Contributions as between respondents

In brief, in employment cases it is not clear that a respondent who has paid out can claim a contribution from another respondent. This does not affect the claimant’s rights, discussed above.

Joint and several liability, above, where damage from discrimination is indivisible, is based on the normal rules on damages in claims for tort (eg negligence) being applicable under the EqA (Hackney v Sivanandan (bailii.org), EAT, 2011, Ross v Ryanair, below, 1978).

So each defendant/respondent is 100% liable to the claimant (if not already paid). But this could leave a defendant/respondent having to meet the full amount, without the others bearing their fair proportion of the cost. So normally, in broad terms, the Civil Liability (Contribution) Act 1978 allows a defendant who pays out to the claimant to recover a contribution from another person who is also liable in respect of the same damage, to the extent a court considers just and equitable. This contribution does not affect the claimant’s rights to recover the full amount from any of them. The 1978 Act applies just between the defendants/respondents liable for same damage (and potentially others liable for the damage who were not parties to the original claim).

This 1978 Act has been held to apply where a discrimination claim is made to a county court, eg against a service provider, or presumably by a student against a university:

Ross v Ryanair, Court of Appeal, 1978
An airline and airport were both held to have unlawfully discriminated, through failing to provide the claimant with a free wheelchair from check-in to plane.

Both were 100% liable to the claimant for compensation. As between the two of them, the court ordered the airport to make a 50% contribution to the airline, under the Civil Liability (Contribution) Act 1978.

In a county court claim like Ross v Ryanair, the court making the joint and several award can also specify the contribution as between the respondents under the 1978 Act. But the EAT has held that an employment tribunal cannot do this:

Brennan v Sunderland City Council (bailii.org), EAT, 2012
An equal pay claim was brought against the council and two trade unions. The claim against the unions was settled, but the claim against the council was continuing. The council claimed to the employment tribunal for a contribution from the unions under the 1978 Act, in the event that the council was held liable.

The council’s claim was struck out. The EAT held that an employment tribunal does not have jurisdiction to consider a claim for contribution under the 1978 Act. (§§16-21)

The EAT therefore did not strictly have to decide whether there was a claim at all under the 1978 Act, in respect of an EqA employment claim. But it did express a view, namely that the 1978 Act does not apply to employment tribunal compensation. (§§21-25)

The EAT was not happy to reach this conclusion. It said, at §26, that there is nothing special about discrimination which makes such an outcome acceptable. Indeed the Court of Appeal in Ross v Ryanair (above) had held that the 1978 Act applies in the case of discrimination claims heard in the ordinary courts.

So unless Brennan is overruled, it seems an employment tribunal cannot order a contribution/apportionment as between respondents (assuming damage is indivisible).

Any claim under the 1978 Act in respect of compensation awarded by an employment tribunal – if permissible at all – would need to go the county court or High Court (§§16, 21 of Brennan decision). However, the EAT in Brennan doubted whether such a claim could be made even to the county court or High Court, as it thought the 1978 Act did not apply to employment tribunal compensation. This would need to be decided by a court to which the claim is made.

Note: In the earlier case of Hackney v Sivanandan (bailii.org), 2011, the EAT seems to have assumed that the 1978 Act applied, but left open whether claims under it would need to go to the county court (§§16(2), 25).

If damage is ‘divisible’

It is different if there is a rational basis for distinguishing the damage caused by different acts of discrimination (by different respondents), so that the damage is ‘divisible’. Here it seems that, like in a normal tort claim, each respondent is liable to the claimant only for the part of the damage caused by the particular respondent. The employment tribunal or county court etc should apportion it between the respondents accordingly. The respondents are not jointly and several liable, so the 1978 Act is irrelevant. (Hackney v Sivanandan (bailii.org), EAT, 2011 at §§16(3), 25)

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 EqA to facilitate employment tribunal claims against Chief Constables in respect of acts of police misconduct panels.