The employer’s liability 




Under the EA 10, an employer is liable for all unlawful acts by employees in the course of employment, unless the employer can show that all reasonable steps were taken to prevent the discrimination taking place (section 109(1), EA 10). The law treats these acts of discrimination as if they were done by the employer. It does not matter that they were done without the employer’s knowledge or approval (section 109(3), EA 10). This is known as vicarious liability. 




The employer’s liability for acts of unlawful discrimination was first established in the case of Raymondo Jones v The Tower Boot Company Limited [1997] IRLR 158. The case concerned a young worker of mixed race in his first job, subjected to appalling levels of racist abuse by co-workers. The Court of Appeal confirmed that discrimination during the course of employment is always the employer’s responsibility unless reasonable steps have been taken to stop it. It is never an excuse that the employer would not have authorised or condoned the behaviour if they had known about it. This ruling formed the basis of the employer’s reasonable steps defence, now found in section 109(4), EA 10. This section says that in legal proceedings against an employer, it is a defence for the employer to show that they took “all reasonable steps” to prevent the acts occurring. 




These steps must have been taken before the discrimination, harassment or victimisation took place. In other words, the employer must show that they took proactive steps to prevent discrimination happening in the first place. Steps taken afterwards, such as investigating the complaint or dismissing the offender, will generally not help the employer establish this defence (Haringey LBC v Al-Azzawi [2000] UKEAT158, Fox v Ocean City Recruitment Limited [2011] UKEAT/0035/11/JOJ).




From a trade union perspective, this reasonable steps defence is a very important tool when it comes to persuading employers to embed equality issues in the workplace. This is because In practice, the only safe way for an employer to protect itself from liability for discrimination is by cultivating an organisational climate at all levels in which all workers are respected, and by acting proactively to ensure that discrimination and harassment are simply not tolerated. 


What are reasonable steps will depend on the particular circumstances of the case, but guidance from the EHRC Code of Practice suggests as a minimum:


• implementing an equality policy effectively;



• ensuring all workers are kept aware of it;



• providing and refreshing equal opportunities training to all staff, including management and HR;




• publicising acceptable standards, for example using posters;



• reviewing the equality policy as appropriate; and




• dealing effectively with complaints of discrimination or harassment.




The statutory bar is a high one. The Code of Practice says: “An employer would be considered to have taken all reasonable steps if there are no further steps that they could have been expected to take. In deciding whether a step is reasonable, an employer should consider its likely effect and whether an alternative step could be more effective. However, a step does not have to be effective to be reasonable”. In other words, an employer cannot avoid liability by suggesting that taking the steps would not have prevented the discrimination or harassment (Canniffe v East Riding of Yorkshire Council [2000] IRLR 555).




For an employer to be liable, harassment or discrimination must take place in the course of employment. This phrase has a wide meaning, and can cover out-of-work events such as office parties organised by the employer, and business trips. It is likely to capture any event that an employer expects workers to attend. For example, a works Christmas party would be covered but perhaps not a spontaneous “after-party” (Bellman v Northampton Recruitment Limited [2016] EWHC 3104).



Even if an employer is not liable for the harassment or discrimination itself, it may be liable for failing to investigate it properly (Coyne v the Home Office [2000] IRLR 838). 




An important developing trend is for organisations to be held vicariously liable for acts of discrimination or harassment by non-employees (sometimes described as “quasi-employment”). Section 109(2), EA 10 imposes vicarious liability for discrimination on “agents” of the employer. Any act done by an agent for a principal with the principal’s authority must be treated as also having been done by the principal. Some “non-employees” will be acting as the employer’s agents. 


Nowadays, many workplaces include a mixture of directly employed staff and “non-employees”, who could be agency workers, volunteers, interns, contractors, or the employees of external organisations such as facilities management companies.


Importantly, unlike the liability of an employer for the discriminatory acts of its own employees, there is no “reasonable steps” defence where discrimination is carried out by an agent. Instead, an organisation is liable for all discriminatory acts done by the agent with the organisation’s authority, regardless of any steps the organisation took to prevent the discrimination (Kemeh v Ministry of Defence [2014] EWCA Civ 91). It does not matter whether the acts are done with the organisation’s knowledge or approval (section 109(3), EA 10).


An important Supreme Court ruling, Cox v Ministry of Justice [2016] UKSC 10, has widened the potential scope of an organisation’s vicarious liability for discrimination or harassment by non-employees. The case involved a prisoner working in the prison kitchens under supervision who dropped a heavy weight on the foot of the catering manager, a prison service employee. The Ministry of Justice (MoJ) was vicariously liable for the injury. The case concerned personal injury, but the same basic principles would apply if, for example, the prisoner racially abused the catering manager. The MoJ would be vicariously liable for the prisoner’s racist abuse of the manager. 


In Cox, the Supreme Court ruled that an organisation can be vicariously liable for harm to an employee by a non-employee who is integrated into the organisation and carrying out activities for its benefit, where the harm results from the decision to give responsibility to the harm doer. The key question is, is the relationship akin to one of employment? If so, the organisation will be liable. 


In a different example, Various Claimants v Barclays Bank PLC [2017] EWHC 1929 (QB), Barclays Bank was vicariously liable to 126 claimants for sexual assaults carried out by an outside doctor paid by the bank to perform health screening tests, required by the bank as part of its job application process from 1967 to 1984. The bank arranged the examinations, which took place at the doctor’s surgery located in his home. Each claimant was aged 16 when the examination took place and believed that if she did not attend, she would not get the job. No choice of doctor was offered.


Cox and Barclays are helpful rulings, but they do not go far enough. They fix an organisation with vicarious liability where the individual is integrated into the organisation and doing work under its control (that is, a “quasi-employee”). For example, acts of harassment by a volunteer are likely to be caught by these rulings. They do not make an organisation responsible for acts of harassment by external third parties wholly beyond its control, such as clients, customers and members of the public (see above: Third party harassment). 


There are also 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.


Unions can be vicariously liable for discrimination or harassment by its own employees engaged on union business. The requirement for acts to take place during the course of employment could cover union conferences and organised events, as well as industrial action. Unions can also be liable for discrimination or harassment by elected or appointed workplace reps when carrying out union business, if found to be acting as the union’s agents, even though they are not union employees (Unite the Union v Nailard [2015] UKEAT/0300/15/BA). Like any other organisation, to minimise the risk of liability, unions need to implement clear, well-publicised equality policies, provide regular training for officials and reps and respond quickly and robustly to any suspicions of discriminatory behaviour, even if no formal complaint has been made.