Under current UK equality laws, an employers is ‘vicariously liable’ for discrimination at work if the discriminator is in their employ (or an agent acting on their behalf).
“Vicarious liability” is when you get to pay the penalty for something done by someone else — so you pay for what your employee did, even though you didn’t do it yourself.
Employers often naively believe that this only applies to act they have ordered their managers to do. The reality is almost the reverse. Employers who have not taken ‘reasonable steps’ to prevent discrimination will find, under current UK law, that they are liable for their employees’ discriminatory actions.
Employers are often knee deep in policies, guidance, staff handbooks and accompanying paperwork. If documents are badly drafted (all too often the case), they will be long, hard to understand, and will contain specialist terms and broad instructions that can’t be used as a practical guide for day to day behaviour at work.
Current equality law requires the employer to train their managers avoid ‘vicarious liability’. But “equality training” is often about equality principles, and leaves individual managers quite bewildered about what they should be doing.
This fosters the mistaken believe that “black people can’t be sacked for poor performance”; or “you can’t ask women to do lifting because they are women”. These ‘play safe’ assumptions are not only stereotypical and wrong, but they also discriminate against other workers and create resentment in the workplace.
Under the Equality Bill, an employer’s defence to ‘vicarious liability’ claims will be that they took such steps as were reasonably practicable to prevent the employee from doing the act. If the equality training offered by an employer results directly in discriminisation against one group in favour of another, then the employer is going to create liability by the process that was supposed to avoid it.
Employers who receive equality-related grievances are going to be in more of a dilemma than they currently are. If, for example, a woman raises a sex discrimination grievance against her manager, she has the right for that grievance to be properly heard and dealt with. But fairness of treatment also applies to the male manager, who can (and they often do) claim that a female manager would have been believed, or given the benefit of better process etc, and they were not. The ‘play safe’ option to prevent recurrence is going to be dismissal, but a knee jerk dismissal will be discriminatory against them!
The ordinary person is not skilled to make these judgements or conduct such investigations. King Solomon himself might have found the issues perplexing.
We regularly investigate and advise on such claims. Even well-informed HR departments can rarely deal with the investigatory process, while the small business owner is sunk without a trace as s/he tries to apply common sense and logic to an Alice in Wonderland world of accusation, denial, counter accusation, with everyone claiming they are the victim of discrimination.
Employers are standing into danger if they don’t investigate claims and take appropriate action (since they won’t have taken reasonable steps to prevent discriminatory treatment), and they are standing into danger if they do investigate and take action. If they uphold a grievance claim, this inevitably starts a discrimination tribunal. If they dismiss the alleged perpetrator, they risk a tribunal claim. And if they don’t, they run more risks of discrimination claims from the original complainant.
The sad thing is that thousands of ordinary managers are afraid to deal openly with problem staff if they belong to a ‘protected group’, whilst real bullies who subject their staff or colleagues to appalling rudeness, mockery and cruelty in the workplace all too often go unchallenged and unrebuked.
This long, wordy, and complex piece of legislation will only reinforce the problem.
74 Employers’ and principals’ liability
(1) Anything done by a person in the course of his employment shall be treated for
the purposes of this Part as done by the employer as well as by the person.
(2) Anything done by a person as agent for another shall be treated for the
purposes of this Part as done by the principal as well as by the agent.
(3) It is immaterial for the purposes of this section whether an employer or
principal knows about or approves of an act.
(4) In proceedings under this Part against a person in respect of an act alleged to
have been done by his employee it shall be a defence for the employer to
provide that he took such steps as were reasonably practicable to prevent the
(a) from doing the act, or
(b) from doing acts of that kind in the course of his employment.
(5) Subsections (1) and (2) shall not apply to the commission of an offence under