The extent of employer and employee liability for discrimination cases in sportPaul Nicholls QC
This is the first in a series of blogs in which the sports law team at Matrix will be addressing a range of interesting topics, drawing on the considerable expertise of the sports team.
Discrimination and whistleblowing claims against well-known respondents often generate high levels of interest and publicity. The pressure attendant on such claims can be increased in cases where a claimant sues not only a corporate respondent – usually the employer – but also named individuals.
This will often be the manager or another high profile individual said to be involved in the acts alleged to be discriminatory or acts of detriment said to have occurred because an employee has made a protected disclosure. This raises the temperature of these claims and can impose a greater pressure on all respondents to settle, no matter what their views of the merits of the claim.
The purpose of this article is to consider the bases upon which individuals may be liable as respondents and in consequence to identify some steps which respondents may be able to take to attempt to limit the extent to which named individuals are party to proceedings. Particular consideration is given to issues that may arise in the sporting context.
The basis and extent of an employer’s liability
The starting point for an understanding of how individuals may be liable as respondents is to appreciate the basis on which organisations such as employers may be liable for the actions of others. All decisions made on behalf of inanimate bodies, such as companies, are taken by real people. Thus a decision to demote or dismiss or subject someone to a detriment is taken by a person and bodies such as an employer will often be liable for the acts of those persons.
As a matter of the general law, employers are vicariously liable for the acts of their employees. So, for example, if a manager makes a decision about the treatment of an employee and does so in the course of the manager’s employment, the employer will be liable for that manager’s acts.
By section 109 of the Equality Act 2010, anything done by a person in the course of that person’s employment is treated as also done by the employer.
In the context of discrimination law, the range of things for which an employer may be liable can be extensive. In Jones v Tower Boot Co Ltd,3 the Court of Appeal adopted a broad definition of ‘in the course of employment’ and held that under the predecessors to the Equality Act, the concept was broader than the general law concept of vicarious liability.
In that case, an employee had been physically and verbally assaulted by another. The attacker was not acting on his employer’s instructions or with its authorisation. The employer said that the employee’s acts were purely of his own volition and outside the course of his employment such that the employer could not be vicariously liable for his actions. Therefore it argued that the employee’s acts were not done ‘in the course of employment’ as required by the legislation (in that case, the Race Relations Act 1976) and so the employer was not liable for the employee’s acts.
The logic of this argument, as the employer acknowledged, was that the more heinous the act, the lower the likelihood that the employer would be liable. The Court of Appeal rejected this and held that something was done ‘in the course of employment’ when a lay person would construe it as being done in that way and that this was not confined to cases where the employer would be vicariously liable at common law. Hence the potential for the employer to be liable under the discrimination statutes is greater than would be the case at common law applying principles of vicarious liability.
How great a difference there is between the Tower Boottest and ordinary principles of vicarious liability may now be open to question in the light of a very recent decision of the Supreme Court, Mohamud v WM Morrison Supermarkets.4 In that case, an employee of a supermarket who worked at a petrol station subjected a customer who asked him to do something to a vicious assault.
Lower courts had held that the employer was not vicariously liable on the basis that there was an insufficient connection between what the employee was employed to and his tortious conduct. The Supreme Court held that the employer was liable, finding helpful the question whether the employee’s conduct was ‘within the field of activities assigned to the employee’. In that case, the employee’s job included responding to customers’ inquiries. What the employee did, although inexcusable, was held to be ‘within the field of activities’ assigned to him.
The broad Tower Boot approach is reflected in the Equality Act, which, at Section 109(3), provides that it does not matter whether things done by individuals are done with the employer’s approval or even knowledge. Thus, for example, an employer has been held liable for sexual harassment inflicted by one employee on another at a pub after work or at a social event organised by the employer outside working hours.5
The consequence of this in the context of sports clubs seems to be that the club as employer may be liable for acts of discrimination by employees committed as part of changing room banter and travelling to matches. Discriminatory action by players towards officials would similarly appear to render the club as employer liable. There would be a case for saying that things done on any occasion which has a connection to the activities of a club would be ‘in the course of employment’ by players. Thus, for example, racially or sexually abusive language at award ceremonies and social events could all be argued to have a sufficient connection with the employment to affix a club with liability.
In relation to whistleblowing, section 47B(1B) of the Employment Rights Act 1996 provides that where a worker is subjected to a detriment by another worker in the course of that other worker’s employment on the grounds that the worker has made a protected disclosure, the thing done is treated as also being done by the employer. Section 47(1C) states, consistently with s 109(3) of the Equality Act, that it is immaterial to the employer’s liability whether the thing done by the employee was done with the knowledge or approval of the employer. In the context of whistleblowing, too, therefore, the range of things for which the employer could be liable is very broad.
In relation to both discrimination and whistleblowing claims, the employer has a defence to acts of employees for which the claimant seeks to make the employer liable. The defence arises under s 109(4) of the Equality Act when the employer ‘took all reasonable steps to prevent’ the individual from doing the particular thing of which complaint is made or anything of that description. The same language is used in relation to whistleblowing in section 47B(1D) of the 1996 Act.
The burden is a high one: ‘all reasonable steps’. Those steps must have as their focus either the thing which the employee has done or things of that description. It seems to follow that a generic instruction not to discriminate would not suffice. Instead the employer must show that it has focused on the sort of activity of which a claimant complains.
What counts as all reasonable steps is, of course, highly fact specific and may also depend on the character of the employee who has committed the discriminatory act. Thus sending a memo to an employee who is known never to read them is unlikely to be enough. Accordingly, it is important that clubs make a concerted effort to educate their managers, players and staff regarding their responsibilities towards each other, and to promote a non-discriminatory working environment. Clear written policies will be a good start; it is, however, vital that active steps are taken to ensure that those policies are properly understood and complied with in practice.
The basis and extent of an employee’s liability
The relevance of the bases on which an employer may be liable for the acts of an employee is that this too establishes the circumstances in which the individual employee who has done a particular act may be liable for acts of discrimination or for detriments for making a protected disclosure.
Dealing first with discrimination cases, where an employer is liable for the acts of an employee, the employee is made liable by statute for aiding the employer to do that act: see Equality Act Section 110. Liability for aiding the employer’s act remains even if the employer establishes the defence to the claimant’s claim under Section 109(4).
So one could have a situation in which the claim against the employer fails but that against another employee succeeds. There are cases in which a claim has been brought against a fellow employee alone. It would be necessary in order to succeed in such a claim that the employer was liable for the employee’s acts, but if that were established, the employee could be liable without needing to join the employer as a party: Barlow v Stone.6
In whistleblowing cases, Section 47(1A) contains an express right for workers not to be subjected to a detriment by another worker on the grounds that the first has made a protected disclosure.
As indicated, the employer is also liable for the acts of the employee. That enables the claimant to bring a claim against a party which, it is assumed, has pockets deep enough to compensate the claimant. But there is nothing in Section 47B which compels the claimant to bring the claim against the employer. The claimant could just pursue the fellow employee based on the things done by that person.
Limits to liability
It follows that there is great scope for claimants to bring claims not only against employers but against named individuals. There are limits, however, and these may be relevant to employers seeking to extricate individuals from proceedings.
First, it will be necessary in every case for a claimant to identify a particular person or persons who have done certain things of which complaint is made. Unless it is possible to identify individuals, the claimant will not be able to point to, for example, a worker who has subjected the claimant to a detriment for making a protected disclosure or an individual for whose act of discrimination the employer is liable.
Often decisions are made in the names of corporate bodies and it may not be easy to identify the particular actor or actors responsible. And of course it will be said for the respondent that the greater the number of decision makers, the less likely it is that decisions were affected by impermissible considerations. That, of course, is an issue that goes to liability rather than to the identification of the correct respondents, but a claimant who cannot point to particular human wrong-doers will not be able to add them as respondents. Often it will be easy to identify the particular human wrong-doer – the individual who makes an abusive comment, for example. But that will not always be so.
Second, and importantly, it seems that individuals will not be liable for decisions to dismiss. That is made express in the context of whistleblowing by Section 47B(2). It is implicit in the Equality Act because Section 39 refers separately to dismissal and subjecting a person to any other detriment. Also, a decision to dismiss is, of necessity, the decision of the employer. Only the other party to a contract can terminate it. The act of doing so is not that of an individual for which the employer is liable.
On one view, this imposes some limits on the extent to which individuals may be named as respondents. But it does not take much imagination to identify acts which, whilst not being the decision to dismiss, are acts done by individuals for which the employer is liable. So, for example, an employee might allege that the decision to instigate the disciplinary proceedings which culminated in dismissal was an act of discrimination or a detriment for whistleblowing for which an individual is liable.
There may be nice questions about causation and loss in such cases. But what this example shows is that, with a little imagination, it may not be too difficult for a claimant to bring in named individuals as respondents in a wide variety of cases.
Where a tribunal decides that both an employer and employee are liable for an act of discrimination or for subjecting a whistleblower to a detriment, it seems that both should be jointly and severally liable for the full amount of the compensation payable to the claimant. It has been held that there is no power in the tribunal to apportion liability by applying the Civil Liability (Contribution) Act 1978 so as to require one respondent to bear a larger share of the liability to compensate the claimant than another: Brennan v Sunderland City Council.7 It is a nice question, however, whether, in a case where an employer becomes liable to compensate a claimant because of an act done by an employee for which the employer is vicariously liable, the employer could sue the errant employee for breach of contract, in particular the implied term of trust and confidence, by doing that act.
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- Tags: Athlete Welfare | Civil Liability (Contribution) Act 1978 | Discrimination | Employment Law | Employment Rights Act 1996 | Equality Act 2010 | United Kingdom (UK) | Whistleblowing
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About the Author
Paul Nicholls QC is a barrister at Matrix Chambers and specialises in a number of areas including restraint of trade and unlawful competition, employment law, commercial law, procurement law and public law.