Liability of employer for acts of non-employees


Under section 109(2), EA 10, an employer is also liable for acts by its agents. This can include some non-employees. The law says that anything done by an agent for a principal with their authority must be treated as also done by the principal. This area of law is increasingly important in workplaces where the workforce is not comprised of direct employees of the employer but instead is made up of employees, agency workers and employees of external organisations such as facilities management companies. 


In Cox v Ministry of Justice, Mohamud v WM Morrison Supermarkets PLC [2016] UKSC 10, the Supreme Court has ruled that an organisation can be vicariously liable for harm done to a worker by a non-employee who is carrying out activities as an integral part of the organisation’s business and for its benefit, and where the risk of wrongdoing results from the organisation’s decision to give responsibility to the wrongdoer (discriminator). In Cox, a prisoner working in the kitchens negligently injured a prison catering manager. The Ministry of Justice was vicariously liable although the prisoner was not an employee. The principles laid down in this case readily extend to many situations in modern workplaces where workers who engage in discrimination are part of an organisation’s workforce without having a contract of employment with it. 


Unlike the liability of an employer for the discriminatory acts of its employees, there is no “reasonable steps” defence where discrimination is carried out by its agent (see above). Instead, the organisation is liable for all discriminatory acts of its agent, regardless of any steps it took to prevent the discrimination.