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Vicarious and personal liability for workplace discrimination

Under the Equality Act 2010 (the Act), anything done by an employee in the course of their employment is treated as having also been done by the employer, regardless of whether the employer was aware or approved of the employee’s actions. 

An employer can, therefore, be ‘vicariously liable’ for discrimination, harassment or victimisation committed by an employee in the course of employment. Employees are also personally liable for unlawful discrimination committed by them in the course of their employment.

Background

A School employed the Claimant as a newly qualified teacher (NQT). She had fibromyalgia and was disabled within the meaning of the Act, which led to several absences. As a result, there was a delay in completing the requisite Career Entry and Development Profile (CEDP).  It was the Claimant’s case that, when she challenged the content of email correspondence between the Head Teacher and her designated NQT mentor in relation to her CEDP, her NQT mentor referred to her as ‘unprofessional’.  At the end of her first term, the Head Teacher completed an NQT report, with which the Claimant took exception. She subsequently resigned, claiming disability discrimination by the School, the Head Teacher and her NQT mentor. 

Employment Tribunal

Although the Employment Tribunal (ET) found the School to be liable for the discriminatory acts of the Head Teacher and the NQT mentor, the claims against them personally were dismissed.   

Employment Appeal Tribunal

On appeal, the Employment Appeal Tribunal (EAT) observed that a person contravenes the relevant section of the Act if they are an employee, do a discriminatory act in the course of their employment, that contravenes the Act, and none of the exceptions to this under the Act apply (which, in this case, they didn’t).  The ET does not have a discretion to find that an employee has not contravened the Act in circumstances where the employer is liable or at all.

The EAT found that both the Head Teacher and the NQT mentor had contravened the Act and were also liable.  

Comment

Where an employee has committed an act of discrimination, harassment or victimisation against a colleague, the employer will not necessarily be liable as it may have a defence.

Whilst the defence was not put forward in this case, an employer can avoid liability if it can show that it took “all reasonable steps” to prevent its employee(s) from committing a discriminatory act.

Reasonable steps

  • Have, implement, and regularly review policies on diversity, equity & inclusion policy, and anti-harassment & bullying. 
  • Communicate these policies and their implications to all employees.
  • Provide adequate training on equal opportunities and discrimination. 
  • Where reasonable, consider and act on any relevant initiatives proposed by your employees.
  • Deal effectively with complaints, including taking appropriate disciplinary action.

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