Liability for agents

Organisations can be held liable for acts of discrimination, harassment and victimisation by their agents.

Section 109(2), EA 10 says that anything done by an agent for a principal (in this context, the organisation) with the principal’s authority must be treated as also having been done by the principal. It does not matter whether the acts were done with the principal’s knowledge or approval (section 109(3), EA 10).

Importantly, there is no “reasonable steps” defence available to an organisation faced with liability for discrimination, harassment or victimisation by their agent. The organisation will be liable as if they did the act themselves, no matter what steps they took to prevent it.

An important UK labour market trend has been the growing use of non-employees, such as agency workers, contractors and interns, often working alongside the directly employed workforce. Where non-employees are found to be acting as the employer’s agents, the organisation that engages these workers may find itself liable for acts of discrimination or harassment by them, regardless of what steps the organisation may have taken to prevent them (Kemeh v Ministry of Defence [2014] EWCA Civ 91).

There are separate laws against instructing, causing or inducing discrimination by someone else (section 111, EA 10) and against knowingly aiding a breach of the EA 10 (section 112, EA 10) which can be important here.