Who Is Responsible for Discrimination in the Workplace?

Discrimination in the workplace can take many forms, from unfair recruitment and promotion decisions to inappropriate behaviour between colleagues. But when discrimination happens at work, who is legally responsible? The employer, the employee, or both?

Under the Equality Act 2010, both employers and individual employees can be held legally responsible for discrimination and other unlawful acts. This means that even when discrimination is carried out by an individual employee, their employer may also face legal consequences.

Understanding who is liable for workplace discrimination is important for both employers and employees, particularly when concerns arise or a potential claim is being considered.

What are the different types of workplace discrimination?

The Equality Act 2010 protects individuals against several forms of discrimination and unlawful conduct, including:

• Direct discrimination: Treating someone less favourably because of a protected characteristic.
   
• Indirect discrimination: Applying a policy, rule or practice that puts people with a particular protected characteristic at a disadvantage.
   
• Harassment: Unwanted conduct related to a protected characteristic that violates someone’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment.
   
• Victimisation: Treating someone unfairly because they have made or supported a discrimination complaint or taken other protected action under the Equality Act.
   
• Instructing, causing, inducing or helping discrimination: Encouraging, directing or assisting another person to carry out unlawful discrimination.

These forms of unlawful conduct apply to most protected characteristics, although some provisions apply differently depending on the circumstances.

Who is protected from workplace discrimination?

The Equality Act 2010 protects a range of individuals against unlawful discrimination in employment and work-related situations.

This includes:

• Employees and job applicants
• Contract workers
• Partners and LLP members
• Individuals seeking professional or vocational training and qualifications

These protections help ensure individuals are treated fairly throughout recruitment, employment and other work-related activities.

Who is legally responsible for discrimination at work?

Responsibility for workplace discrimination does not always fall on the person who carried out the unlawful act.

Under the Equality Act 2010, discriminatory acts carried out by an employee ‘in the course of employment’ are treated as though they were also carried out by their employer. This is known as vicarious liability and applies whether or not the employer knew about the employee’s actions.

However, an employer may defend a discrimination claim if it can show it took ‘all reasonable steps’ to prevent the employee from carrying out the discriminatory or unlawful act.

This makes it important for employers to take proactive steps to prevent discrimination and address inappropriate behaviour in the workplace.

Is an employer responsible for harassment by a third party?

Workplace harassment does not always involve colleagues. It can also come from people outside the organisation, including customers, contractors and members of the public.

Currently, employers will only be liable for third-party harassment where an employee can demonstrate that the employer’s failure to protect them was because of a protected characteristic.

The upcoming Employment Rights Bill will reintroduce employer liability for third-party harassment. Under these changes, employers will be liable if a third party harasses an employee in the course of employment and the employer fails to take ‘all reasonable steps’ to prevent it.

These changes highlight the importance of understanding how harassment can arise in the workplace, including through interactions with people outside the organisation.

Can an employee be personally liable for workplace discrimination?

Employees can be held personally responsible for discrimination or other unlawful acts they commit in the course of their work, where the act is treated as having been carried out by the employer and amounts to a contravention of the Equality Act by the employer.

Importantly, an employee’s personal liability is separate from whether their employer is ultimately found to have breached the Equality Act.

This means that an employee who discriminates against or harasses a colleague cannot necessarily avoid personal liability simply because their employer took all reasonable steps to prevent the behaviour.

Understanding your responsibilities under the Equality Act 2010

Whether you are an employer looking to prevent workplace discrimination or an employee concerned about unfair treatment, understanding where legal responsibility lies is an important first step.

For employers, taking a proactive approach to workplace policies, training and concerns about discrimination can help reduce the risk of disputes.

For employees, understanding your legal protections and who may be responsible for unlawful behaviour can help you make informed decisions about your next steps.

Speak to our Employment Law team

If you are dealing with workplace discrimination or harassment, our Employment Law team is here to help.

At Warner Goodman LLP, we provide clear, practical advice to both employers and employees on workplace discrimination, legal responsibilities and Employment Tribunal claims. Whether you need advice on a potential discrimination claim or support with an existing workplace dispute, we’re here to guide you through your options.

Call us on 023 8063 9311 or email enquiries@warnergoodman.co.uk to speak to our team.