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 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.
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: 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 and others involved
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.
It is also unlawful to knowingly help another to do something contravening the workplace (or most other) provisions of the Equality Act (EqA s.112, Employment Code from para 9.25).
Defence for employees etc
For employees/agents, and also for people ‘helping’, 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
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)
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.
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.
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.