Liability for agents

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

Section 109(2), EA 10 says that anything done by an agent for a principal 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). In an employment context. “principal” here refers to the organisation that instructs the agent to act on their behalf.

Importantly, there is no “reasonable steps” defence available to an organisation that is 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 (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.