Employer liability for discrimination

Employers are liable for the discriminatory acts of the people they employ, if the acts are committed in the course of employment. This means that a company is legally accountable for any act of discrimination that an employee commits while at work, whether or not the employer knows about it or approves of it.

Liability outside the workplace

A company can even be liable for discrimination that occurs at a social event outside the workplace, if the event can properly be regarded as an extension of employment. Take, for example, a case where an employee is sexually harassed by a work colleague at a party to mark someone’s retirement from the company, and the company has organised and funded the party. It is possible that an employment tribunal would conclude that the company was liable for that act of discrimination, even if the party took place outside the workplace and outside working hours.

Responsibility for contractors and agencies

It is also important to note that an employer is liable not only for the acts of its employees and apprentices, but also for the acts of any other person it employs under a contract to carry out work personally, including self-employed contractors.

It is unlawful for an employer to instruct another person to discriminate or to aid another person in discriminating. For example, if a company tells a recruitment agency to send only women candidates for a job as a receptionist, or not to send disabled people, it is acting unlawfully.

Employees’ liability for discrimination

Employees who discriminate in the course of their employment are themselves acting in breach of the discrimination legislation. Claims of discrimination can be, and often are, brought against the individual who committed the act of discrimination as well as against the employer. If it upholds a discrimination claim, a tribunal can, and often does, order the individual as well as the company to pay compensation.

This is a point that companies may think it worth mentioning if they meet resistance when introducing new policies or procedures aimed at preventing discrimination in the workplace.

‘Reasonably practicable steps’ defence

Although the initial assumption is that a company is liable for the discriminatory acts of its employees, the company has a potential defence. It can escape legal liability if it can show that it ‘took such steps as were reasonably practicable’ to prevent the employee from doing the act, or from doing that type of act while at work. The defence will not apply if there were preventive steps that it was reasonably practicable for the company to take but it failed to do so, even if taking those steps would not actually have prevented the discrimination occurring.

Preventing discrimination

The steps that it is reasonably practicable for a company to take will depend on the nature of the act of discrimination and the circumstances of the company. For example, if a manager discriminated when recruiting, the employment tribunal hearing the discrimination claim is likely to be interested in knowing whether the company had made clear to the manager the importance of avoiding discrimination, and had trained the manager in how to draw up and apply objective selection criteria based on the requirements of the job and conduct any interview in a fair and objective manner.

Depending on the company’s size and resources, the tribunal might also expect it to have adopted and publicised a formal equal opportunities policy, with top-level management support, in order to confirm the importance it attaches to avoiding unlawful discrimination. Further, it might expect the company to monitor the outcome of its recruitment practices by sex, race, age and disability, to identify whether they might be affected by conscious or unconscious bias (see below).

Where an employee has been harassed at work, a company is unlikely to be able to avoid liability unless it can show that it had, as a minimum:

• made clear to its workforce what types of conduct would be viewed as harassment;
• made clear to the workforce its policy that harassment would not be tolerated in the workplace, and implemented that policy in practice; and
• provided employees with some accessible means of raising complaints of harassment (although an employee who has been harassed is not bound by the usual rule that he or she must lodge a grievance before bringing a claim to an employment tribunal (dealing with grievances), if he or she has reasonable grounds for believing that lodging a grievance will lead to further harassment).

Equal opportunities checklist

The following equal opportunities checklist summarises the steps that employers should consider in order to avoid liability for discrimination. A bullying and harassment policy and procedure is given at (model documents).

The role of the Equality and Human Rights Commission

In October 2007, a new, unified Commission, the Equality and Human Rights Commission, replaced the three equality Commissions. The new Commission’s remit covers all the equality legislation, i.e. sex, gender reassignment, disability, sexual orientation, religion or belief, age, race as well as human rights. The new Commission will also be responsible for enforcing anti-discrimination laws on sexual orientation, religion or belief and age which were areas not covered by the original Commissions.

The Commission is available to give employers advice on all aspects of discrimination and on setting up effective policies and practices to ensure that discrimination does not occur in their workplace. It can give guidance, for example, on drawing up an equal opportunities policy, drafting a procedure to deal with harassment, and putting in place systems to monitor the current workforce and job applications to ensure that discrimination is not occurring.

The Codes of Practice

The equality Commissions have published Codes of Practice giving guidance on how to avoid unlawful discrimination (useful information) and these Codes remain in force. The Border and Immigration Agency has also issued a Code, on avoiding racial discrimination while seeking to prevent illegal working. While it is not unlawful for an employer to disregard the recommendations in these Codes, tribunals hearing discrimination claims must take the Codes into account where they are relevant to the issues before them. The Codes are likely to be particularly relevant when the tribunal turns to the issue of whether an employer had taken all steps that were reasonably practicable to prevent the discrimination occurring.

Companies may therefore find it useful to incorporate the guidance from these Codes when reviewing existing employment policies and procedures or introducing new ones. The disability Code is much more detailed than the sex and race discrimination Codes and is likely to be a particularly useful reference source.

Monitoring

While there is no express legal obligation to do so, the Codes of Practice recommend that employers should monitor their employment practices by sex, race, age and disability, in order to identify whether discrimination is occurring. The collection and analysis of monitoring information is also necessary in order for a company to assess the effectiveness of any equal opportunities initiatives that it may have taken. The Race Equality Code gives specific guidance on monitoring. It recommends that employers should monitor the following, by racial group: applications for jobs and success rates at each stage of the process; distribution of workers in the organisation by type of job, location and grade; applications for promotion, transfer and training and success rates for each; the results of performance appraisals; grievances and disciplinary action, including the results; and terminations of contract, for whatever reason.

An employer must ensure that the way it handles monitoring information complies with the requirements of the data protection legislation (see data protection). The legislation classifies information on racial or ethnic origin, religious belief and disability as sensitive personal data but allows for it to be processed if this is necessary in order to monitor equal opportunities. The Data Protection Code advises that, where practicable, monitoring information should be collected in a way that does not enable individuals to be identified. The information should also be accurate and not excessive, so, for example, there should be sufficient categories of ethnic origin to enable employees to be properly categorised.

The easiest point at which to gather monitoring data is on recruitment. All job applicants can be asked to complete a form giving details of their sex, racial or ethnic origin and any disabilities. Applicants should be told why the information is being requested and how it will be used. It is advisable for the monitoring form to be kept separate from the application form, so that the information it contains does not influence the recruitment process.

Existing employees will need to be asked to submit a monitoring form. In order to maximise the number of forms returned, the employer should explain the purpose of the exercise and the importance of completing the form. In organisations where unions are recognised, it would be good practice to obtain union support for the monitoring exercise and union involvement in explaining its importance.

Employees should be given the opportunity to raise any concerns that they may have about the exercise, either with the employer or with their union representative. If an employee is not willing to complete a monitoring form, he or she should be advised that his or her immediate manager will provide the monitoring information, based on the manager’s knowledge and assessment of the employee, and that the information provided by the manager will be placed on the employee’s personnel file. If this proves to be necessary, the Data Protection Code advises that the record should make clear how the categorisation was made.