Under s.111 Equality Act 2010 (EqA), it can be unlawful to ‘instruct’, ’cause’, or ‘induce’ a person to breach the EqA in relation to someone else. Also, under s.112, it is normally unlawful to knowingly ‘help’ someone breach the EqA.
Ss.111 and 112 are not needed if the company etc is liable anyway (under s.109 EqA) because its employee or agent committed the discrimination: see Who is liable under the Equality Act.
Summary
- Under s.111 EqA it can be unlawful for a person (A) to ‘instruct’, ’cause’, or ‘induce’ another person (B) to breach the EqA in relation to someone else (C), or to attempt to do so. B and/or C can potentially claim against A. Below Instructing, causing or inducing (s.111)
- However, an important pre-condition for s.111 is that A and B must be in a relationship within which discrimination is prohibited. This should not be a problem if A and B are both within the same employer, say. However, in some cases the condition will not be fulfilled. Below S.111(7): relationship between inducer and induced.
- The Court of Appeal has considered the meaning of ’cause’ in s.111, and to some extent ‘induce’: below ‘Instruct’, ’cause’, and ‘induce’.
- Under s.112 EqA, it is normally unlawful to ‘knowingly help’ someone breach the EqA. Again there can be issues of what this means. Below: ‘Helping’ to breach the EqA (s.112).
Instructing, causing or inducing (s.111)
It can be unlawful for a person (A) to ‘instruct’, ’cause’, or ‘induce’ another person (B) to breach the EqA in relation to someone else (C), or – under s.111(8) – to attempt to cause or induce this. Either the person who received the instruction (B) or the intended victim (C) can claim (even if the instruction was not carried out), provided the claimant B or C suffers a detriment as a result of A’s conduct. The breach by B being induced etc must be a ‘basic contravention’ (below), which is widely defined as anything which contravenes Part 3, 4, 5, 6 or 7 of the EqA, or s.108(1)(2) or s.112. (EqA s.111, Employment Code from para 9.16)
However, between the person giving the instruction etc (A) and the recipient of the instruction (B), there must be a relationship within which discrimination is prohibited. For example, a manager putting pressure on another staff member would be covered by s.111. A and/or B may be corporate bodies. See further below S.111(7): relationship between inducer and induced.
The Court of Appeal in Bailey v Stonewall, [2025] EWCA Civ 1662, considered at some length the meaning of ’cause’, which is likely to be wider than ‘induce’ or ‘instruct’. See below ‘Instruct’, ’cause’, and ‘induce’.
‘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.’
Employment Code para 9:18
‘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.’
Employment Code para 9:23
‘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.’
EHRC’s 2012 Technical guidance on further and higher education, para 3.46:
S.111 does not affect the fact that if B commits the basic contravention against C, then C can claim against B under the general provisions of the EqA. S.111 adds a further claim (by C or B), against someone else (A) who gave instructions etc to B.
S.111(7): Relationship between inducer and inducee
S.111(7) EqA says
[Section 111] does not apply unless the relationship between A and B is such that A is in a position to commit a basic contravention in relation to B.
‘Basic contravention’ (below) has the same meaning as before. It is widely defined as anything which contravenes Part 3, 4, 5, 6 or 7 of the EqA, or s.108(1)(2) or s.112.
So basically for s.111 to apply, the person giving the instruction etc (A) must be in a relationship with the recipient of the instruction (B) in which discrimination etc is prohibited. ‘In relation to B’ in s.111(7) has been held to mean ‘against B’: Truman v SPL Powerlines, 2026.
The most obvious situation is where A and B are in an employment relationship, in which case s.111(7) should not be a problem. See the example in Technical Note: Employment example below.
An EAT has said that A and B can both be corporate bodies: NHS Trust Development Authority v Saiger (bailii.org), 2017 at §117.
Knowingly ‘helping’ discrimination within s.112 can be a basic contravention, but that seems unlikely to extend the reach of s.111(7): below S.111(7): Interaction with s.112 on ‘helping’ discrimination.
S.111(7): Example of A as a service provider
Bailey v Stonewall, [2025] EWCA Civ 1662, Court of Appeal
A barrister succeeded in a claim that her barristers chambers, Garden Court (GCC), had discriminated against her because of her gender critical beliefs. However, she failed in her claim under s.111 against Stonewall, that they had induced or caused the discrimination by GCC.The Court of Appeal said (§10) that it had always been common ground that GCC and Stonewall were in a qualifying relationship for the purposes of s.111(7), because Stonewall provided services to GCC. Stonewall (A) was a service provider to GCC (B) under Stonewall’s Diversity Champions scheme (§§63 and 24 of EAT decision).
Even so, Stonewall was held not liable under s.111, because it had not ‘induced’ or ’caused’ the discrimination by GCC: see below ‘Instruct’, ’cause’, and ‘induce’.
In Bailey, the relationship between A and B was that of service provider and customer within EqA Part 3, and the relationship between B and C was within the EqA Part 5 employment provisions (a barristers chambers can be a trade organisation within s.57 EqA, in Part 5). On the wording of s.111(7), it seems fine for the relationships to be of different types in this way. Also s.111(9) and s.140 (below Which court?) make little sense unless they can be of different types. (The EAT in Akester v Burlington Care below, at §§115-116, pointed out that the EAT in Bailey v Stonewall did not decide whether it was enough that Stonewall was a service provider to the chambers. However, the point did not have to be decided in Akester, and anyway was not disputed.)
S.111(7): Case where A was a government department
Akester was a case where a government department, through its guidance, was alleged to have instructed, caused, or induced care homes to discriminate against unvaccinated staff:
Akester v Burlington Care (bailii.org), [2025] EAT 111
For a period during the Covid-19 pandemic, government regulations required people working in care homes to be vaccinated, unless there was a ‘clinical reason’ for them not to be. In this case the EAT considered government guidance on those regulations. The EAT upheld a tribunal decision that the relevant government department, through this guidance, did not instruct, cause or induce discrimination by care homes, within s.111 EqA. This was mainly because the guidance did not give an unduly restrictive view of what counted as a ‘clinical reason’ in the regulations.The alleged discrimination by the care homes – which the claimants argued was induced etc by the government guidance – was dismissing the claimants because they were not vaccinated. Their claims for discriminatory dismissal against the care homes themselves had yet to be decided at the time of this case. This EAT decision concerned only the claim against the government department.
Since the government department was held not to have induced etc discrimination, the EAT did not have to interpret s.111(7) EqA. However, the employment tribunal had said s.111(7) meant that the government department which issued the guidance – the Department of Health and Social Care (DHSC) – needed to be in a position to commit some form of discrimination under parts 3–7 EqA (or ss.108 or 112) against the care homes (a ‘basic contravention’ (below)). When asked to say what basic contravention against the care homes the DHSC was in a position to commit , the claimant’s lawyer was ‘unable to do so’ (EAT decision §§43, 115, 116).
Comment: If it was possible to find some way in which the DHSC might exercise its public functions in a discriminatory way towards a care home, so as to fall within EqA s.29(6), would that be enough to satisfy s.111(7)? Cf §119 of the EAT decision in Akester. Potential discrimination against a care home by the Care Quality Commission (CQC), which regulates care homes, apparently would not count as the CQC is a separate legal person: see §130. This case illustrates the type of issue the courts have yet to resolve.
S.111(7): Examples on education and training
What about the following, related to education and training?
- an employer (A) encourages a university (B) not to send it disabled students for a university work placement? or
- a professional body (A) sets competence standards to be met by a university’s (B’s) degree taken by those wanting to enter the profession, and these standards are unjustifiably discriminatory?
One might expect these situations to fall within s.111 EqA. However, they will not if one cannot find a way to argue that s.111(7) is satisfied: see Work placements related to education courses>S.111(7): Relationship between university and placement provider. If blocked by s.111(7), one could of course consider whether alternative possible claims are available – including whether instructing etc the discrimination is a breach of the general discrimination rules applicable to the relevant company/body (such as a body exercising public functions within EqA Part 3), or whether one body is acting as agent on behalf of the other within s.109 and 110 EqA, or whether one body is knowingly ‘helping’ the other within s.112 below.
S.111(7): Interaction with s.112 on ‘helping’ discrimination
Knowingly helping discrimination within s.112 (‘Helping’ to breach the EqA, below) can be a ‘basic contravention’ (below), but an EAT has said it is difficult to see how this can expand the reach of s.111(7). Specifically, the EAT held that the basic contravention referred to in s.111(7) must be against B rather than someone else:
Truman v SPL Powerlines UK, [2026] EAT 54
Network Rail – liable under the EqA as a qualifications body – banned the claimant from safety-critical work in the rail industry for five years, after he failed a drugs and alcohol (D&A) test. The claimant was taking medical cannabis for pain relief from a disability. The employment tribunal (ET) found that under Network Rail’s policy he should have been given a ‘pass’. However, the company that performed the D&A test, Express Medicals, had uploaded a ‘fail’ result to Network Rail’s system.The ET said that had it found Network Rail liable for discrimination, it would in principle have concluded that Express Medicals was in breach of s.111(2) EqA, by causing Network Rail to contravene the EqA. The ET decided that there was the required relationship between Express Medicals (A) and Network Rail (B) under s.111(7), because Express Medicals was theoretically in a position to commit a basic contravention (within s.112 EqA) by knowingly helping Network Rail to commit an act of discrimination against those subjected to D&A testing.
The EAT overruled the ET decision on this. S.111(7) requires a relationship between A and B such that A is in a position to commit a basic contravention ‘in relation to B’, and the EAT held that this means a contravention ‘against B’. So discrimination against those being tested was irrelevant. There would need to be a relationship between Express Medicals and Network Rail such that Express Medicals was in a position to give knowing help to a third party to commit a basic contravention against Network Rail.
Also the EAT found it difficult to see how the language of s.111(7) could have any application to s.112(1), as s.112 did not depend on there being any form of underlying relationship between A and B. This contrasted with liability within EqA Part 5, for example, being based on the relationship between an employer and employee.
Note: The EAT referred back to an ET the issue of whether Network Rail itself was liable for discrimination.
‘Instruct’, ’cause’, and ‘induce’
The Court of Appeal in Bailey v Stonewall (below) considered mainly the meaning of ’cause’. But that should be the most important of the three, since it is probably the widest, and so most likely to set the outer limits of s.111.
‘Cause’ (s.111(2))
Under s.111(2) a person (A) must not ’cause’ – or attempt to cause (s.111(8)) – another person (B) to discriminate etc in relation to a third person (C). The leading case on the meaning of ’cause’ in s.111(2) is:
Bailey v Stonewall, [2025] EWCA Civ 1662, Court of Appeal
The claimant was a barrister. Her chambers, Garden Court (GCC), were held to have unlawfully discriminated against her because of her gender critical beliefs, by deciding after an investigation that two of her tweets were likely to breach Bar Standards Board core duties.However, the Court of Appeal upheld the employment tribunal (ET) decision that Stonewall – who had made a complaint to GCC about her tweets – was not liable for causing or inducing the discrimination under s.111, given the facts found by the ET.
On the meaning of ’cause’, the Court of Appeal said that once ‘but for’ causation is established (which it was here), the tribunal has to decide whether it is fair or just or reasonable to find the person [A] liable, with a focus on various legal labels (also called concepts or filters) by which liability may be limited. The court found that in this case, the ET had applied the concept of new intervening cause (novus actus interveniens). The ET was entitled to conclude that GCC’s actions and omissions in the course of its investigation broke the chain of causation between Stonewall’s complaint and the discrimination suffered by the claimant.
The court also held that the ET entitled to find that Stonewall had not attempted to cause discrimination, given that (on the facts found by the ET) Stonewall ‘s complaint was merely a protest, no more.
Further, the Court of Appeal rejected the claimant’s argument that Stonewall had ‘induced’ (below) the discrimination, under s.111(3). It was difficult to see how she could succeed on inducement where her case on ’cause’had failed. The latter presented a lower hurdle than inducing – which involves, at the very least, some element of deliberate conduct.
So provided the discrimination would not have happened ‘but for’ the actions of A, there is an evaluation by the tribunal of whether it is fair for A to be held liable, having regard to the statutory context and all the facts, and focusing on the concepts by which case law – mainly on tort rather than discrimination – has held that liability may be limited (see quote from Kuwait Airways case).
As well as the concept of intervening cause (important on the facts of Bailey), the Court of Appeal particularly discussed two other factors because their relevance was disputed in this case. These were foreseeability of damage of the relevant sort, and A’s ‘intention, motivation or reason for acting (including whether they are influenced by another’s protected characteristic(s) or act(s))’. The Court of Appeal said that these were factors to be taken into account in the tribunal’s evaluation, but were not decisive. The court accepted, though, that it was ‘difficult to envisage liability being established without some mental element connecting [A’s] acts with the claimant’s protected characteristic or act’. There is more detail in my page on Bailey v Stonewall.
‘Induce’ (s.111(3))
Under s.111(3) a person (A) must not ‘induce’- or attempt to induce (s.111(8)) – another person (B) to discriminate etc in relation to a third person (C).
It was common ground in the Court of Appeal in Bailey v Stonewall that inducement under s.111(3) means persuading or prevailing upon or bringing about: see CRE v The Imperial Society of Teachers of Dancing [1983] ICR 473. The Court of Appeal there said the claimant’s argument that Stonewall acted with the intention that action should be taken against her did not get off the ground, as it was inconsistent with the tribunal’s findings of fact. Further, said the Court of Appeal in Bailey, it was difficult to see how the claimant could succeed in her appeal on inducement, where Stonewall was held not to have ’caused’ the discrimination. It said, ‘Causing discrimination presents a lower hurdle than inducing which involves, at the very least, some element of deliberate conduct’ (§89).
The EAT (bailii.org) in Bailey had discussed ‘inducement’ in more detail. The EAT said that ‘induce’ in s.111(3) is broadly synonymous with ‘persuade’. Similarly to ‘instruct’ (below), person A must intentionally induce person B to carry out an act or omission which contains all the elements required under the EqA for the basic contravention by B to be unlawful, including any mental element of the basic contravention. (§102-106, also §135-141 applying this to the particular case).
If the EAT is right on this (those details were not discussed by the Court of Appeal in Bailey), for inducing etc discrimination within s.15 EqA (discrimination arising from disability), it seems B needs to be induced to do the act because of something arising from the disability.
‘Instruct’ (s.111(1))
Under s.111(1) a person (A) must not ‘instuct’ another person (B) to discriminate etc in relation to a third person (C).
The meaning of ‘instruct’ here was not discussed by the Court of Appeal in Bailey.
The EAT (bailii.org) in Bailey said it is in the nature of an instruction that the instructor intends the instructee to do something specific. It said A need not be aware that the instructed act will be unlawful, but must know what A is instructing B to do. The act, as instructed, must contain all the elements required under the EqA for it to be unlawful, including any mental element if there is one. For example, in the case of direct discrimination, there must be an instruction to do it because of a protected characteristic. But for indirect discrimination no mental element is needed. (§101 of EAT decision)
Knowledge of disability
There is a defence to both s.15 EqA and the reasonable adjustment duty if the employer etc shows it did not have actual or constructive knowledge of the disability and (for reasonable adjustments) the substantial disadvantage. It is unclear how this fits with s.111:
- Common sense suggests that knowledge on the part of B is not something that A has to ‘induce’ etc. Eg it may be obvious that C is in a wheelchair, or is blind, and cannot do a particular thing unless an adjustment is made.
- How far is A required to have knowledge? It would be unfair if A could be liable here under s.111 without A having (actual or constructive) knowledge of the disability, for example. Court decisions are likely to reflect this somehow.
- If A but not B has actual or constructive knowledge of the disability (eg where C is dismissed by their employer B for disability-related misconduct), A would doubtless seek to argue that A is not liable as there is no basic contravention by B – because without that knowledge B is not liable under eg s.15 EqA. This seems unfair, but may well be the law.
For a somewhat related area, in the sense of inputs into a dismissal decision potentially being separate acts of discrimination, see Direct discrimination>Mental process of decision-maker, rather than other staff.
S.111: ‘Basic contravention’
What is instructed, caused or induced must be a ‘basic contravention’ of the EqA, as defined in s.111(1). The definition of basic contravention is very wide. It includes any contravention of Parts 3 to 7 of the EqA. So it includes, for example, employment-related discrimination or harassment contravening Part 5 (work), or discrimination in relation to the provision of services contravening Part 3 (services and public functions).
‘Basic contravention’ also includes a contravention of two ancillary provisions of the EqA, namely s.108(1)(2) (Former workers, customers and students), and s.112(1) (Knowingly ‘helping’ someone breach the EqA, below). For example, Z causing another person Y to knowingly help X unlawfully discriminate against W could be a breach of s.111(2) by Z, with the ‘basic contravention’ by Y being a breach of s.112. (For s.112 to apply, also the discrimination by X against W would need to be a ‘basic contravention’ within s.112, below.)
Breach of s.109 (Who is liable under the EqA>Liability for actions of own employees/workers) is not – and does not need to be – included as a basic contravention. S.109(1) and (2) say that acts of the employee or agent are treated as also done by the person’s employer or principal. The effect of this wording is that the contravention by the employer/principal is a contravention of the relevant Part of the EqA, not of s.109 itself.
‘Basic contravention’ does not seem to include liability of an employee or agent under s.110 EqA (Who is liable under the EqA>Claiming against employee or agent (s.110)). However, inducing etc discrimination by an employee or agent (within s.110) of an employer or service provider etc will normally also be inducing an EqA contravention by the employer or service provider etc itself (via s.109, see previous paragraph), which will be the ‘basic contravention’. So this should fall within s.111. However, the wording of s.111 is not ideal: see the ‘technical issue’ below in Technical Note: Employment example>S.111(2).
S.111: Which court?
S.111(9) EqA sets out which court a s.111 claim goes to. In effect:
- On a s.111 claim by C (the victim of discrimination) against A, the court is determined by the relationship between B and C. For example, if B (the recipient of the instruction etc) is C’s employer, C would claim against A in the employment tribunal.
- On a s.111 claim by B (the recipient of the instruction etc) against A, the court is determined by the relationship between A and B which satisfies s.111(7), above. So the claim would be in the county court if A is a service provider or exercising public functions in relation to B, or in the employment tribunal if A is B’s employer.
If conduct gives rise to claims in different courts – say one claim in the employment tribunal and one in the county court – and at least one claim is under s.111, the court or tribunal can transfer a claim so that they are all heard in the same tribunal/court: s.140 EqA.
Failure to carry out instructions etc – discrimination by association
A person may 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 for a person (A) to ‘knowingly help’ another (B) to do commit a ‘basic contravention’ (below) of the EqA: EqA s.112, Employment Code from para 9.25.
Two 2001 House of Lords decisions on a older similar provision (‘knowingly aids’) in the Race Relations Act 1976 should still be relevant. The EAT in Akester above, 2025, said that although s.112 EqA now says ‘knowing help’, it is clear that this is merely intended to be a plainer way of saying ‘knowingly aids’, not to change the meaning.
Broadly, the House of Lords in 2001 said ‘aids’ is given its normal meaning, but it must be aid to do the unlawful act, rather than just helping/aiding in some way:
Hallam v Cheltenham Borough Council (bailii.org), House of Lords, 2001
A bride’s mother contracted with the council to hire a venue for the wedding reception. Her husband (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 these 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 that 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 of a gang of youths, brandishing weapons and shouting racist abuse, chasing after a suitable victim who then found a place to hide. A bystander who – realising what the youths intended – betrayed the victim’s hiding place to them would be aiding the gang 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 a person aiding must have. The House said it may be that in most cases (as in Anyanwu v South Bank Student Union below), if aid is found to have been given at all, there will be little doubt that it was given ‘knowingly’ .
Anyanwu v South Bank Student Union (bailii.org), 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. 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).
In Akester above, 2025, at §133-135, the EAT held the employment tribunal was entitled to decide that s.112 EqA did not include conduct amounting to instructing, causing or inducing within s.111. For example, the EAT said remarks by two of the Law Lords in Hallam and Anyanwu above supported that, and still held good (§134).
Defence of reasonable reliance
Under s.112, person A has a defence if they reasonably relied on a statement by B that the act does not contravene the EqA. It is a criminal offence for B to knowingly or recklessly make such a statement which is false or misleading in a material respect. (EqA s.112(2)(3))
S.112: ‘Basic contravention’
‘Basic contravention’ is defined in s.112(1) very similarly to basic contravention in s.111 (above). So it is very wide.
However, unsurprisingly, in s.112 a breach of s.111 (Instructing, causing or inducing (s.111), above)) is included as a basic contravention, but a breach of s.112 itself is not.
Technical Note: Employment example
Take the examples in para 9.18 (above) and 9.23 of the Employment Code. In brief, the managing partner of an accountancy firm suggests to the head of the administrative team that engaging a senior receptionist with a physical disability would reflect poorly on his judgement, and so affect his future with the firm. The Employment Code says this is likely to amount to causing or attempting to cause the head of administration to act unlawfully.
S.111(2)
If person A causes person B to discriminate against another person C, person A is potentially liable under s.111(2) EqA. Perhaps the best way to analyse this example is that
- the accountancy firm (the employer) is person A: under s.109 EqA (Who is liable under the EqA>Liability for actions of own employees/workers), what the managing partner says – as the firm’s agent if not its employee – is treated as said by the firm;
- the head of the administrative team is B: para 9.23 of the Code says the head of the administrative team could claim against A if he suffered a detriment, so the Code sees him as B;
- the job applicant (potential receptionist) is C.
A technical issue is that under s.111(2), A must be causing B to do something that is a ‘basic contravention’. Under s.109 what the team head B does is treated as also done by the employer, and under s.110 the team head could himself be personally liable. Basic contravention, above is defined as including the employer’s contravention of EqA Part 5 (discriminating against C), but not the team head’s (B’s) own s.110 liability for this.
Nevertheless, I suggest that to make sense of s.111, its wording would be read as allowing the employer rather than B himself to be the person liable under Part 5 for the ‘basic contravention’. Also s.111(9)(b) could be read as not requiring B to be the employer. (There may be other routes to a similar result.)
Relationship under s.111(7)
Assuming the head of the administrative team (B) is an employee of the firm (A), there is clearly a relationship between him and the firm such that the firm (A) could commit a ‘basic contravention’ in relation to him (B) – ie breach the employment provisions in Part 5 of the EqA. So s.111(7) is satisfied.
Possible personal liability
As well as the firm itself being liable, the managing partner (as regards the breach of s.111(2)) and the head of the administrative team (as regards the discrimination against C within ss.13, 15 or 20 EqA) should be personally liable under s.110 EqA (Who is liable under the EqA>Claiming against employee or agent) – subject to any reasonable reliance defence in the case of the team head.
Alternative
An alternative analysis could be that the managing partner rather than the firm is person A. This should work too, provided ‘relationship’ in s.111(7) is interpreted so as to include the effects of s.109 and 110.
