It is not just the people in charge of organisations providing goods, facilities or services to the public or carrying out public functions who must avoid unlawful discrimination, harassment and victimisation.
If another person who is:
- employed by a service provider, or
- carrying out a service provider’s instructions (who the law calls the service provider’s agent)
does something that is unlawful discrimination, harassment or victimisation, the service provider can be held legally responsible for what they have done.
This part of the guide explains:
- When a service provider can be held legally responsible for someone else’s unlawful discrimination, harassment or victimisation.
- How a service provider can reduce the risk that they will be held legally responsible.
- When workers employed by the service provider or its 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 a service provider tries to stop equality law applying to a situation.
A service provider is legally responsible for acts of discrimination, harassment and victimisation carried out by its workers in the course of their employment.
A service provider will also be legally responsible as the ‘principal’ for the acts of their agents done with their authority. Their agent is someone a service provider has instructed to do something on their behalf, even if they do 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 the service provider's instructions
it does not matter whether or not the service provider:
- knew about, or
- approved of
what their worker or agent did.
For example:
A shop assistant bars someone they know to be gay from the shop where they work because they are prejudiced against gay people. The person who has been barred can bring a case in court for unlawful discrimination because of sexual orientation against both the shop assistant and the person or company that owns the shop.
A community organisation hires a consultant to devise a new plan for how the organisation delivers its services. The consultant acts on behalf of the organisation and in its name, both when dealing with internal staff and when dealing with external organisations. The effect of the consultant’s plan is to stop some people with a particular protected characteristic accessing its services. A service user with that characteristic complains of unlawful indirect discrimination, saying that the new approach has a worse impact on them and other people who share the protected characteristic. The organisation is unable to objectively justify the approach. The consultant who made the decision which has resulted in indirect discrimination would be liable, as would the principal (in this case the organisation), which would be liable for what their agent (the consultant) has done.
However, a service provider 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 the service provider asked them to do that they could no longer be thought of as acting on the service provider’s behalf).
A service provider can reduce the risk that they will be held legally responsible for the behaviour of their workers or 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 a service provider and their staff are dealing face-to-face with you, but also to how they plan their services.
When a service provider is planning their services, they need 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 disabled people.
A worker or agent may be personally responsible for their own acts of discrimination, harassment or victimisation carried out during their employment or while acting with their principal’s authority.
This applies where either:
- the service provider is also liable as their employer or principal, or
- the service provider would be responsible but they show that:
- they took all reasonable steps to prevent their worker discriminating against, harassing or victimising you, or
- their agent acted outside the scope of their authority.
For example:
Unknown to their employer, the receptionist in an estate agent refuses to give details of houses for rent to a client with a mental health condition. The estate agent has issued clear instructions to its staff about their obligations under equality law, has provided equality training, and regularly checks that staff are complying with the law. It is likely that the receptionist has acted unlawfully but that their employer will have a defence.
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 a worker employed by them or their agent relies upon to carry out an unlawful act.
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.
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.
A service provider cannot stop equality law applying to a situation if it does in fact apply. For example, there is no point in a service provider making a statement in a contract with a customer, client or service user that equality law does not apply. The statement will not have any legal effect. That is, it will not be possible for the service provider 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 business gives a client a written contract to sign which includes a term saying that they cannot bring a claim under the Equality Act 2010. The business withdraws the service in circumstances which amount to unlawful discrimination. The term in the contract does not stop the client bringing a claim in court.
Last updated: 25 Mar 2020