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Who can you sue for discrimination?


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Who Can You Sue for Discrimination?

Employer

Sections 3940 and 83(4) make your employer liable for prohibited conduct before, during and after employment. Before employment, employers must not discriminate against or victimise job applicants in the arrangements they make for deciding who should be offered employment, the terms on which they offer employment, or by not offering employment because of an applicant’s Trans status. During employment, your employer should not discriminate against or victimise you as to the terms of your employment, in the way they make access to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service, by dismissing you or subjecting you to any other detriment. A detriment is anything which might cause you to change your position for the worse or put you at a disadvantage, for example, being denied training or promotion. Section 108 applies the prohibition After your employment has ended.  The EHRC Guide for employers – “What equality law means for you as an Employer: dismissal, redundancy, retirement and after a worker has left” provides detailed guidance on your employer’s responsibilities.

Your colleagues

Your employer is also liable for prohibited conduct by your colleagues in the course of their employment, whether or not your employer knew or approved of it. Section 109 EQA 2010 states that anything done by an employee in the course of employment must be treated as also done by the employer. This is called “vicarious liability“.  Section 110 expressly provides that an employee will be personally liable for acts of discrimination, harassment or victimisation carried out against other workers during the course of his or her employment. Section 109(4) says that the only defence an employer has is if they are able to prove that they took all reasonable steps to stop that particular conduct or other behaviours like it from happening. The words “in the course of employment” means things that your colleagues do whilst they are doing their job. Paragraph 10.46, Employment Statutory Code of Practice.”The phrase ‘in the course of employment’ has a wide meaning: it includes acts in the workplace and may also extend to circumstances outside such as work-related social functions or business trips abroad. For example, an employer could be liable for an act of discrimination which took place during a social event organised by the employer, such as an after-work drinks party.”
The Court of Appeal described the phrase in the case of Jones v Tower Boot Company Limited [1997],  and said that it should be interpreted in the broad sense in which it is employed in everyday speech. It covers prohibited conduct which happens outside work as long as there is a direct link to work for example during a work trip, or party.  The application of the phrase would be a matter of fact for the Employment Tribunal to decide.

This means that you can sue your colleagues AS WELL As your employer for discrimination, and your colleague will have to pay you compensation if found liable by the Employment Tribunal.  In Miles v J. Gilbank [2006],  Ms Miles personally had to pay Ms Gilbank £25,000 for vicious and inhumane acts which were sustained and personally encouraged by Ms Miles who was the manager.

Your employer’s agents

Section 109 makes your employer liable for the prohibited conduct of its agents while acting under your employer’s authority. Agents include recruitment agencies and occupational health services. It makes no difference whether your employer knew about the behaviour or approved of it. In Taiwo Lana v Positive Action Training in Housing Ltd (PATH) [2001], PATH placed Ms Lana with Walker Management as a trainee quantity surveyor. She was expected to be a trainee from 1 October 1998 until 30 September 1999. The placement was effected by two contracts. The first contract was between Ms Lana and PATH, the second between PATH and Walker Management. When Walker Management found out that Ms Lana was pregnant they terminated her contract. PATH then terminated its training contract with Ms Lana because they said they did not have any work for her. The Employment Appeal Tribunal (EAT) said that PATH was liable because they had agreed to provide Taiwo with work experience, and contracted with Walker Management (which was their agent) to provide her with the work experience placement.

Third Parties

Your employer can also be held liable for the actions of a third party who is not an employee, if your employer does not intervene or stop the behaviour because you are LGBT. In the case of Macdonald v Advocate General for Scotland; Pearce v Governing Body of Mayfield School [2003]  the House of Lords said that an employer will not be liable for in such a situation unless the reason for the employer’s failure to take action is related to the employee’s protected characteristics, or the third party was acting as the employer’s agent.

Trustees and managers of occupational pension schemes

Discrimination, harassment and victimisation because of sexual orientation by trustees and managers of occupational pension schemes are also prohibited by section 61.

Agencies

The EQA 2010 also covers work situations where your employer is different from the company or organisation that you actually work for. This company or organisation is called the “principal”. Section 41(5) describes the principal as a person who makes work available for an individual who is employed and supplied by another person (whether or not that other person is a party to the contract). An individual who works under such an arrangement is called a “contract worker”. Section 41(7) describes a contract worker as a person who is supplied to the principal and is employed by another person who is not the principal. The worker must work wholly or partly for the principal, even if they also work for their employer, but they do not need to be under the managerial power or control of the principal. An example of such a situation is where you are supplied by an employment agency. The employment agency is legally your employer and sends you out to work for another company (the principal). Contract workers also include employees who are seconded to work for another company.

Section 41 protects contract workers in the same way as employees are protected against discrimination, harassment and victimisation.  The principal (the end-user) and your legal employer both have obligations not to carry out any prohibited conduct.   It is unlawful for a principal to discriminate against or victimise a contract worker;

  • in the terms on which the principal allows the contract worker to work;
  • by not allowing the contract worker to do or continue to do the work;
  • in the way the principal affords the contract worker access to benefits in relation to contract work, or by failing to afford the contract worker access to such benefits; or
  • by subjecting the contract worker to any other detriment.

Other organisations

There are special provisions setting out the circumstances in which other bodies may be liable for discrimination, harassment and victimisation, including:

  • Partnerships or proposed partnerships – Section 44
  • Limited Liability Partnerships (LLP’s) or proposed LLP’s  – Section 45
  • Barristers – Section 47
  • Employment-service providers  – Section 55 

 

Last Updated: [06/01/2022]