Liability of employer for acts of non-employees



Under section 109(2), EA 10, an employer is liable for discriminatory acts by its “agents”. The law says that anything done by an agent for a principal with their authority must be treated as also done by the principal. In some circumstances, “non-employees” can be “agents” of the employer. This area of law is increasingly important in workplaces where the workforce is made up of “non-employees” – such as agency workers, volunteers, interns or employees of third parties such as facilities management companies. 



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 an agent. Instead, the organisation is liable for all discriminatory acts of its agent, regardless of any steps it took to prevent the discrimination (Kemeh v Ministry of Defence [2014] EWCA Civ 91).



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 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, where the risk of harm results from the organisation’s decision to give responsibility to the harm doer.


In the Cox case, brought with the support of the Prison Officers Association, a prisoner who was working in the prison kitchens negligently injured a prison catering manager. The Ministry of Justice was found to be vicariously liable even though the prisoner was not an employee.


Unions can be vicariously liable for discrimination or harassment by their officials or workplace reps where they are found to be acting as the union’s agents (Unite the Union v Nailard [2015] UKEAT/0300/15/BA). Unions need to have clear and well-publicised equality policies in place and to provide regular, up-to-date training for officials and reps.