Who is liable
Companies, as well as individual staff or agents involved in discrimination, can be liable under the Equality Act 2010. People who instruct or pressure others to discriminate may also be liable.
- An employer is liable for an act of its employee in the course of employment.
- This can include work-related social events, for example.
- Employees may be personally liable.
- Agents are also covered.
- Legal provisions on 'instructing', 'causing', 'inducing', or 'aiding' can also make other people liable.
A company (or other organisation or person) is liable for an act of their employee done in the course of the person's employment. It does not matter whether the employer knew about the employee's action or approved it. (s.109 EqA)
From Statutory Code of Practice
"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."
Paragraph 10.46, Employment Code of Practice.
The same applies to acts of an agent done with the authority of the company.
The employer has a defence in respect of actions of an employee if the employer shows it took all reasonable steps to prevent the employee doing that thing, or doing anything of that description (s.109(4) EqA).
Liability of employees and agents
Where an organisation is liable for the action of an employee or agent (see above), then under s.110 EqA the employee or agent is also liable.
So an employee who harasses a colleague for example, or who discriminates against a customer or student, can be personally liable under the Equality Act. This applies even if the employer escapes liability through relying on the ‘reasonable steps’ defence. Accordingly the claim may be brought against one or more individual employees and/or agents as well as the organisation.
There is a defence for an employee who reasonably relies on a statement by the employer that doing the thing is not a contravention of the Equality Act (s.110(3)-(5) EqA).
Instructing, causing, inducing, or aiding
Under s.111 EqA it is often a breach of the Act for a person (A) to instruct, cause or induce another (B) to do in relation to a third person (C) anything which contravenes the EqA. This is so even if B does not do the thing. Attempting to instruct, cause or induce is also covered. Either B or C can claim if subjected to a detriment.
However, s.111 only applies if A discriminating against B would be prohibited under the EqA, for example under the provisions on employment or provision of services to the public.
Example from Statutory Code of Practice
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.
Paragraph 9.18, Employment Code of Practice.
It is also a breach of the Equality Act to 'knowingly help' somone else commit a breach. There is a defence if the 'helper' reasonably relies on a statement by the first person that the act for which the help is given does not contravene the Act. (s.112 EqA)