When your employer is responsible for what other people do

It is not just how your employer personally behaves that matters.

If another person who is:

  • employed by your employer, or
  • carrying out your employer's instructions to do something (who the law calls your employer's agent)

does something that is unlawful discrimination, harassment or victimisation, your employer can be held legally responsible for what they have done.

This part of the guide explains:

  • When your employer can be held legally responsible for someone else’s unlawful discrimination, harassment or victimisation
  • How your employer can reduce the risk that they will be held legally responsible
  • When workers employed by your employer or your employer's agents may be personally liable
  • What happens if a person instructs someone else to do something that is against equality law
  • What happens if a person helps someone else to do something that is against equality law
  • What happens if an employer tries to stop equality law applying to a situation 

When your employer can be held legally responsible for someone else’s unlawful discrimination, harassment or victimisation

Your employer is legally responsible for acts of discrimination, harassment and victimisation carried out by workers employed by them in the course of their employment.

Your employer is also legally responsible as the ‘principal’ for the acts of their agents done with their authority. Their agent is anyone your employer has instructed to do something on their behalf, even if your employer does not have a formal contract with them.

As long as:

  • the worker was acting in the course of their employment – in other words, while they were doing their job, or
  • the agent was acting within the general scope of their principal's authority – in other words, while they were carrying out your employer's instructions

it does not matter whether or not your employer:

  • knew about, or
  • approved of

what their worker or agent did.

For example:

A shopkeeper goes abroad for three months and leaves a worker employed by him in charge of the shop. This worker harasses a colleague with a learning disability, by constantly criticising how they do their work. The colleague leaves the job as a result of this unwanted conduct. This could amount to harassment related to disability and the shopkeeper could be responsible for the actions of the worker.

An employer engages a financial consultant to act on their behalf in dealing with their finances internally and with external bodies, using the employer’s headed notepaper. While working on the accounts, the consultant sexually harasses an accounts assistant. The consultant would probably be considered an agent of the employer and the employer is likely to be responsible for the harassment.

However, your employer will not be held legally responsible if they can show that:

  • they took all reasonable steps to prevent a worker employed by them acting unlawfully
  • an agent acted outside the scope of their authority (in other words, that they did something so different from what your employer asked them to do that they could no longer be thought of as acting on your employer's behalf)

How your employer can reduce the risk that they will be held legally responsible

Your employer can reduce the risk that they will be held legally responsible for the behaviour of workers employed by them or their agents if they tell them how to behave so that they avoid unlawful discrimination, harassment or victimisation.

This does not just apply to situations where your employer and their other staff are dealing face-to-face with you, but also to how your employer and the people who work for them plan what happens in your workplace.

When your employer or their workers or agents are planning what happens to you in a work situation, your employer needs to make sure that their decisions, rules or ways of doing things are not:

  • direct discrimination, or
  • indirect discrimination that they cannot objectively justify, or
  • discrimination arising from disability that they cannot objectively justify, or
  • harassment,

and that they have made reasonable adjustments for you if you are a disabled person.

So it is important for your employer to make sure that their workers and agents know how equality law applies to what they are doing. 

When your employer's workers or agents may be personally liable

A worker employed by your employer or your employer's agent may be personally responsible for their own acts of discrimination, harassment or victimisation carried out during their employment or while acting with the employer's authority.

This applies where either:

  • your employer is also liable as their employer or principal, or
  • your employer would be responsible but they show that:
  • they took all reasonable steps to prevent their worker discriminating against, harassing or victimising you, or 
  • that their agent acted outside the scope of their authority.

For example:

A factory worker racially harasses their colleague. The employer would be liable for the worker’s actions, but is able to show that they took all reasonable steps to stop the harassment. The colleague can still claim compensation against the factory worker in an employment tribunal.

But there is an exception to this. A worker or agent will not be responsible if their employer or principal has told them that there is nothing wrong with what they are doing and the worker or agent reasonably believes this to be true.

It is a criminal offence, punishable by a fine, for an employer or principal to make a false statement which an employee or agent relies upon to carry out an unlawful act. 

What happens if a person instructs someone else to do something that is against equality law

An employer or principal must not instruct, cause or induce a worker employed by them or their agent to discriminate against, harass or victimise another person, or to attempt to do so.

‘Causing’ or ‘inducing’ someone to do something can include situations where someone is made to do something or persuaded to do it, even if they were not directly instructed to do it.

Both:

the person who receives the instruction or is caused or induced to discriminate against, harass or victimise, and

the person who is on the receiving end of the discrimination, harassment or victimisation

have a claim against the person giving the instructions if they suffer loss or harm as a result of the instructing or causing or inducing of the discrimination, harassment or victimisation.

This applies whether or not the instruction is actually carried out.

What happens if a person helps someone else to do something that is against equality law

A person must not help someone else carry out an act which the person helping knows is unlawful under equality law.

However, if the person helping has been told by the person they help that the act is lawful and they reasonably believe this to be true, they will not be legally responsible.

It is a criminal offence, punishable by a fine, to make a false statement which another person relies on to help to carry out an unlawful act

What happens if an employer tries to stop equality law applying to a situation

An employer cannot stop equality law applying to a situation if it does in fact apply. For example, there is no point in an employer making a statement in a contract of employment that equality law does not apply. The statement will not have any legal effect. That is, it will not be possible for the employer to enforce or rely on a term in a contract that tries to do this. This is the case even if the other person has stated they have understood the term and/or they have agreed to it.

For example:

A worker’s contract includes a term saying that they cannot bring a claim in an Employment Tribunal. Their employer sexually harasses them. The term in their contract does not stop them bringing a claim for sexual harassment in the Employment Tribunal.

A business partner’s partnership agreement contains a term that says ‘equality law does not apply to this agreement’. The partner develops a visual impairment and needs reasonable adjustments to remove barriers to their continuing to do their job. The other partners instead ask them to resign from the partnership. The partner can still bring a claim in the Employment Tribunal for a failure to make reasonable adjustments and unlawful disability discrimination.

An applicant for a job is told ‘equality law does not apply to this business, it is too small’. She still agrees to go to work there. When she becomes pregnant, she is dismissed. She can still bring a claim in the Employment Tribunal for pregnancy discrimination.

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