Liability for agents 


An important developing trend is for organisations to be held vicariously liable for discrimination or harassment by non-employees (sometimes described as “quasi-employees”). Nowadays, many workplaces include various different categories of “non-employee”, such as volunteers, interns and contractors.



Section 109(2), EA 10 imposes vicarious liability for discrimination by “agents” of the employer. It says that 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. It does not matter whether the acts were done with the organisation’s knowledge or approval (section 109(3), EA 10).



Some “non-employees” will be acting as the employer’s agents (Kemeh v Ministry of Defence [2014] EWCA Civ 91). 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, the organisation will be liable for all discriminatory acts done by the agent with the organisation’s authority, regardless of any steps it took to prevent them. 



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.



Like any other employer, a union can be vicariously liable for discrimination or harassment by its employees when 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 official industrial action. 


In addition, unions can be liable for discrimination or harassment by elected or appointed workplace reps or shop stewards carrying out union business. In general, the law treats them as the union’s agents (Unite the Union v Nailard [2018] EWCA Civ 1203). This means that the union can be liable regardless of what steps it took to prevent the unlawful acts and even if the union did not know about the harassment. To minimise the risk of this liability, unions need clear, well-publicised equality policies with zero tolerance of harassment, to provide regular training for officials and reps and to respond quickly and firmly to any suspicions of discriminatory behaviour by employed officials, members, activists, elected reps and shop stewards, even if no formal complaint has been made.