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11/08/20 Employment Law Update

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13/07/20 Employment Law Update

Discrimination and Vicarious Liability in Employment Law

As an employer, do you pay close attention to the actions of your employees? Does this go beyond simply making sure they arrive on time, complete the tasks assigned, follow the processes you set in place and to a standard you require? Are you doing enough? In this article we look at the circumstances in which you, as an employer, can be held liable for the discriminatory actions of your employees.

Vicarious Liability
When you are held responsible for the actions of omissions of another you are said to be vicariously liable. Put that into the context of the workplace and an employer can be liable for the acts and/or omissions of its employees where the same took place in the course of their employment.

What is “in the course of employment”?

This question was considered by the House of Lords in the case of Lister v Helsey Hall Limited and the “sufficient connection” test was applied. In this case the House of Lords held that the employer was vicariously liable in respect of the abuse of a number of boys at the boarding school at the hands of the warden. It was held that vicarious liability can, and in this case did, arise from unauthorised, intentional wrongdoings committed by an employee, acting for their own benefit, where a connection exits between the wrongdoing and the work which they are employed to carry out and the argument that such liability could only arise when acting for the employer’s benefit was rejected. The abuse had occurred at the time, premises and during the warden’s care of the boys and was therefore “in the course of employment”. The fact that it was his job to care for the boys but what he did was perform that job in an abusive fashion did not mean that the connection with his employment was severed. Put simply, when considering this question, we must analyse the connection between the job the employee is employed to do and its connection to the wrongdoing committed.

Compare this decision to the more recent Supreme Court ruling in WM Morrisons Supermarkets plc v Various Claimants. Skelton, a Senior Internal Auditor, held a grudge against his employer and as a result of that he committed a significant data breach by publishing payroll data online. This case focused in on the ‘field of activities’ which he performed when considering whether he actions were taken “in the course of employment”. In Skelton’s case, his role required him to transmit payroll data to KPMG. The Supreme Court found that the online disclosure of the data was not part of Skelton’s ‘field of activities’, as it was not an act he was authorised to do. It added that ‘although there was a close temporal link and an unbroken chain of causation linking the provision of the data to Skelton for the purpose of transmitting it to KPMG and his disclosing it on the internet, a temporal or causal connection does not in itself satisfy the close connection test.’ Although this case is not one that concerns an act of discrimination the ruling of the Supreme Court is still applicable in so far as it helps determine when vicarious liability will arise.

One common misconception is that where an incident takes place outside of working hours it will not be considered as having occurred in the course of employment. The test of sufficient connection still applies and so in certain circumstances, for example during work related social occasions vicarious liability may still arise. In Chief Constable of Lincolnshire Police v Stubbs the Claimant attended the pub immediately after work for a leaving party for a colleague at which that were subjected to sexual harassment sufficient connection was found by virtue of the nature of the gathering and the fact that there were a number of fellow police officers present. Similarly, in Livesey v Parker Merchanting where sexual harassment occurred at a Christmas party it was held that this also felt within the course of employment, as dud the continuing harassment which took place during the car journey home from that same event.

On the other hand, the mere fact that the wrongdoing occurs on the employer’s premises and/or premises connected with the employer will not necessarily mean that vicarious liability will arise. In the case of Waters v Metropolitan Police it was alleged that a policewoman had been sexually assaulted by a fellow officer, whilst both were off duty, in the police section house where the policewoman had a room. That was not held to be a sufficient connection.

The Statutory Defence

The Equality Act 2010 does provide one final line of defence for employers who may otherwise be held vicariously liable when the employer in question can establish that they took all reasonable steps to prevent the employee from doing the alleged act of discrimination or from doing anything of that description. In reality this is a high hurdle for an employer to surmount and is only applicable to claims brought under the Act.

A Tribunal will consider what, if any, action was taken by the employer and what further steps could have been taken that would have been reasonable to take. The fact that a step may not have prevented the discrimination from occurring does not necessarily mean that it was not a reasonable step for the purpose of the statutory defence but Tribunal’s will allow for consideration by an employer as to the proportionality of the step taking into account the expense and effort required to take the step balanced against the likely results it would render.

When assessing the steps taken the first port of call for the Tribunal will almost always be to look at what an employer did to prevent the discriminatory act in question as opposed to what it did after the discrimination came to light. The mere existence of an equal opportunities policy is highly unlikely to be sufficient unless the employer can demonstrate its implementation in practice. Where an employer knows or suspects that a particular employee or group of employees are at risk of committing acts of discrimination then the obligations on that employer to put in place additional measures will be more stringent and the scope of what would be deemed “reasonable” extended.

What should employers be doing to ensure they can rely on the statutory defence?

The Equality and Human Rights Commission produced the Equality Act 2010 Code of Practice on Employment which is where the Employment Tribunal will turn when assessing whether all reasonable steps were taken and as such it makes a great starting point for employers who want to be in a position to successfully exercise the statutory defence if required. Guidance within the code of practice recommends reasonable steps might include the implementation of an equality policy; ensuring the policy is well publicised within the workplace and the attention of the workforce is drawn to it; keeping the policy under review and updating where appropriate; providing equal opportunities training; and dealing effectively with employee complaints.

The code of practice also sets out detailed guidance on how to plan, implement, monitor and review your equality policy as well as more general guidance on avoiding discrimination in recruitment and during employment. A good place to start with your policy is to ensure that it includes the following: a statement of commitment to providing equal opportunities for all job applicants and workers; details of what will be considered acceptable and/or unacceptable conduct at work (including work related activities such as social events); the rights and responsibilities of those to whom the policy applies; details of how the policy fits in with other policies and procedures such as disciplinary and grievance policies; details of the procedures for addressing any complaints; the identity of the person(s) responsible for the policy and details of how they will implement, monitor and review it going forward.

In terms of training the employer should ensure that all workers, and also any agents they may engage, are aware of and understand the equality policy and how it applies to them. Any persons in a management position should receive specific training on how to effectively and fairly manage any equality and diversity issues that arise in the workplace. That training should cover an explanation of the protected characteristics and what constitutes prohibited conduct (i.e. the different forms of discrimination such as direct, indirect and harassment). Managers should be taught to recognise unacceptable conduct, not just the obvious, but also covering issues such as stereotyping and bias. It should be instilled in your management team the risks that condoning, or seeming to condone, such conduct not just to the business but also to themselves in respect of potential personal liability. And finally, it should be

What now?

If you have come to the end of this article and realised that perhaps you are not doing enough to be able to successfully utilise the statutory defence if required then luckily for your business you are in the right place to get the help you need. Employee Management Limited have expert consultants on hand who can help draft your equality policy and who can provide bespoke equality and diversity training sessions for your management team or workforce as a whole. Get in touch now on 01942 727200 or email us at enquiries@employeemanagement.co.uk.