Liability for employees and agents

Advice and Guidance

Who is this page for?

  • Public sector

Which countries is it relevant to?

    • England

      England

    • |
    • Scotland

      Scotland

    • |
    • Wales

      Wales

As an employer you are legally responsible for acts of discrimination, harassment and victimisation carried out by your employees in the course of employment or by people who take action for you (agents).

It does not matter whether or not you knew about or approved of those acts.

However, if you can show that you took all reasonable steps to prevent your employees or agents from acting unlawfully, you will not be held legally responsible.

It is important that you take steps to make sure your employees and agents understand that they must not discriminate against students, or harass them or victimise them, and that they understand your duties in relation to making reasonable adjustments for disabled students.

An employee (of a further or higher education institution) is personally responsible for their own acts of discrimination, harassment or victimisation carried out during their employment, whether or not the employer is also liable.

For Example:

A lecturer racially discriminates against a student. The college is able to show that it took all reasonable steps to prevent the harassment and therefore was not liable. The student can still make a claim of discrimination against the lecturer.

If the relationship is one of a person paying for someone else to take action for them and someone taking action for them (their ‘agent’) rather than employer and employee, the agent is personally responsible in the same circumstances.

Employees or agents will still be responsible for their acts of discrimination, harassment or victimisation even if they did not know their actions were against the law.

But there is an exception to this. An employee or agent will not be responsible if their employer or principal has told them that there is nothing wrong with what they are doing and he or she reasonably believes this to be true.

It is a criminal offence, punishable by a fine of up to £5,000, for an employer or principal to make a false statement in order to try to get an employee or agent to carry out an unlawful act.

As a further or higher education institution you must not instruct, cause or induce someone to discriminate against, harass or victimise another person, or to attempt to do so.

Both the person who receives the instruction and the intended victim will have a claim against whoever gave the instructions. This applies whether or not the instruction is carried out, provided the recipient or intended victim suffers loss or harm as a result.

It only applies where the person giving the instruction is in a legal relationship with the person receiving the instruction such as employer and employee or agent and principal.

Employment Tribunals will deal with complaints from an employee or agent who has received the instructions and the victim can make a claim in the same way as they would for any other claim under the act. So if you instruct a member of staff to discriminate against a student on grounds of their sex then the member of staff can make a claim to an Employment Tribunal and the student can make a claim to a county or sheriff court.

The Equality and Human Rights Commission can also take action for unlawful instructions to discriminate.

It is unlawful for you to help someone else carry out an act which you know is unlawful under the Equality Act.

However, if the person giving assistance has been told by the person he or she assists that the act is lawful and he or she reasonably believes this to be true, he or she will not be legally responsible.

It is a criminal offence, punishable by a fine of (currently) up to £5,000, to make a false statement in order to get another person’s help to carry out an unlawful act under the Equality Act.

Last updated: 07 Apr 2016

Further information

If you think you might have been treated unfairly and want further advice, you can contact the Equality Advisory and Support Service.

Phone: 0808 800 0082
Textphone: 0808 800 0084

You can email using the contact form on the EASS website.

Also available through the website are BSL interpretation, web chat services and a contact us form.

Post:
FREEPOST
EASS HELPLINE
FPN6521

Opening hours:

9am to 7pm Monday to Friday
10am to 2pm Saturday
closed on Sundays and Bank Holidays

Alternatively, you can visit our advice and guidance page.