It is not just how you personally behave that matters when you are running an organisation providing goods, facilities or services to the public or carrying out public functions.
If another person who is:
- employed by you, or
- carrying out your instructions (who the law calls your agent)
does something that is unlawful discrimination, harassment or victimisation, you can be held legally responsible for what they have done.
This part of the guide explains:
- When you can be held legally responsible for someone else’s unlawful discrimination, harassment or victimisation.
- How you can reduce the risk that you will be held legally responsible.
- How you can make sure workers employed by you and your agents how equality law applies to what they are doing.
- When workers employed by you or your or agents may be personally liable.
- What happens if a person instructs someone else to do something that is against equality law.
- What happens if a person helps someone else to do something that is against equality law.
- What happens if you try to stop equality law applying to a situation.
If you use other people to provide services or carry out public functions for you, you are legally responsible for acts of discrimination, harassment and victimisation carried out by workers employed by you in the course of their employment.
You are also legally responsible as the ‘principal’ for the acts of your agents done with your authority. Your agent is someone you have instructed to do something on your behalf, but who is not a worker employed by you, even if you do not have a formal contract with them.
As long as:
- your worker was acting in the course of their employment – in other words, while they were doing their job, or
- your agent was acting within the general scope of your authority – in other words, while they were carrying out your instructions
it does not matter whether or not you:
- knew about, or
- approved of
what your worker or agent did.
A shop assistant bars someone they know to be gay from the shop where they work because they are prejudiced against gay people. The person who has been barred can bring a case in court for unlawful discrimination because of sexual orientation against both the shop assistant and the person or company that owns the shop.
A community organisation hires a consultant to devise a new plan for how the organisation delivers its services. The consultant acts on behalf of the organisation and in its name, both when dealing with internal staff and when dealing with external organisations. The effect of the consultant's plan is to stop some people with a particular protected characteristic accessing its services. A service user with that characteristic complains of unlawful indirect discrimination, saying that the new approach has a worse impact on them and other people who share the protected characteristic. The organisation is unable to objectively justify the approach. The consultant who made the decision which has resulted in indirect discrimination would be liable, as would the principal (in this case the organisation), which would be liable for what their agent (the consultant) has done.
However, you will not be held legally responsible if you can show that:
- you took all reasonable steps to prevent a worker employed by you acting unlawfully.
- an agent acted outside the scope of your authority (in other words, that they did something so different from what you asked them to do that they could no longer be thought of as acting on your behalf).
You can reduce the risk that you will be held legally responsible for the behaviour of the people who work for you if you tell them how to behave so that they avoid unlawful discrimination, harassment or victimisation.
This does not just apply to situations where you and your staff are dealing face-to-face with other people when you are delivering your services, but also to how you plan what happens.
When you or your workers or agents are planning what happens to people you are delivering your services to, you need to make sure that your decisions, rules or ways of doing things are not:
- direct discrimination, or
- indirect discrimination that you cannot objectively justify, or
- discrimination arising from disability that you cannot objectively justify, or
It is therefore important to make sure that your workers and agents know how equality law applies to what they are doing.
Tell your workers and agents what equality law says about how they must and must not behave while they are working for you.
Below are some examples of reasonable steps you can take to prevent unlawful discrimination or harassment happening in your workplace:
- Telling your workers and agents when they start working for you – and checking from time to time that they remember what you told them, for example, by seeing if/how it has made a difference to how they behave. This could be a very simple checklist you talk them through, or you could give them this guide, or you could arrange for them to have equality training.
- Writing down the standards of behaviour you expect in an equality policy.
- Including a requirement about behaving in line with equality law in every worker’s terms of employment or other contract, and making it clear that breaches of equality law will be treated as disciplinary matters or breaches of contract.
You can read more about equality training and equality policies in the Equality and Human Rights Commission guide Good Equality Practice for Employers: Equality policies, equality training and monitoring.
Using written terms of employment for employees
Employment law says you must, as an employer, give every employee a written statement of the main terms of their employment. You could include a sentence in these written terms that tells the person working for you that they must meet the requirements of equality law, making it clear that a failure to do so will be a disciplinary offence.
Obviously, if you do this, it is important that you also tell the employee what it means. You could use an equality policy to do this, or you could just discuss it with them, or you could give them this guide to read. But it is important that they are clear on what equality law says they must and must not do, or you may be held legally responsible for what they do.
Remember, if the employee is a disabled person, it may be a reasonable adjustment to give them the information in a way that they can understand.
If you receive a complaint claiming unlawful discrimination in relation to your services, you can use the written terms to show that you have taken a reasonable step to prevent unlawful discrimination and harassment occurring. However, you will have to do more than this to actively prevent discrimination.
If someone does complain, you should investigate what has taken place and, if appropriate, you may need to discipline the person who has unlawfully discriminated against or harassed someone else, give them an informal or formal warning, provide training or even dismiss them; the action you take will obviously vary according to the nature of the breach and how serious it was.
If you do find that a worker employed by you has unlawfully discriminated against a service user, then look again at what you are telling your staff to make sure they know what equality law means for how they behave towards the people they are working with.
Good practice tip for how you and your staff should behave
Ideally, you want anyone who works for you to treat everyone they come across with dignity and respect, including customers, clients or service users, members, associate members or guests. This will help you provide a good service (not just without discriminating but more generally). If your staff do unlawfully discriminate against people using your services, your reputation may suffer, even if the person on the receiving end does not bring a legal case against you.
A worker employed by you or your agent may be personally responsible for their own acts of discrimination, harassment or victimisation carried out during their employment or while acting with your authority.
This applies where either:
- you are also liable as their employer or principal, or
- you would be responsible but you show that:
- you took all reasonable steps to prevent your worker discriminating against, harassing or victimising someone, or
- your agent acted outside the scope of your authority.
Unknown to their employer, the receptionist in an estate agent refuses to give details of houses for rent to a client with a mental health condition. The estate agent has issued clear instructions to its staff about their obligations under equality law, has provided equality training, and regularly checks that staff are complying with the law. It is likely that the receptionist has acted unlawfully but that their employer will have a defence.
But there is an exception to this. An worker 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 the worker or agent reasonably believes this to be true.
It is a criminal offence, punishable by a fine, for an employer or principal to make a false statement which a worker employed by them or their agent relies upon to carry out an unlawful act.
An employer or principal must not instruct, cause or induce a worker employed by them or their to discriminate against, harass or victimise another person, or to attempt to do so.
‘Causing’ or ‘inducing’ someone to do something can include situations where someone is made to do something or persuaded to do it, even if they were not directly instructed to do it.
- the person who receives the instruction or is caused or induced to discriminate against, harass or victimise, and
- the person who is on the receiving end of the discrimination, harassment or victimisation
have a claim against the person giving the instructions if they suffer loss or harm as a result of the instructing or causing or inducing of the discrimination, harassment or victimisation.
This applies whether or not the instruction is actually carried out.
A person must not help someone else carry out an act which the person helping knows is unlawful under equality law.
However, if the person helping has been told by the person they help that the act is lawful, and they reasonably believe this to be true, the person helping will not be legally responsible.
It is a criminal offence, punishable by a fine, to make a false statement which another person relies on to help to carry out an unlawful act.
You cannot stop equality law applying to a situation if it does in fact apply. For example, there is no point in making a statement in a contract with a client, customer or service user that equality law does not apply. The statement will not have any legal effect. That is, it will not be possible to enforce or rely on a term in a contract that tries to do this. This is the case even if the other person has stated they have understood the term and/or they have agreed to it.
A business gives a client a written contract to sign which includes a term saying that they cannot bring a claim under the Equality Act 2010. The business withdraws the service in circumstances which amount to unlawful discrimination. The term in the contract does not stop the client bringing a claim in court.
Last updated: 19 Feb 2019