Discrimination – the sky’s the limit

The proposed takeover of Sky by 21st Century Fox may not be an obvious starting point for an employment law blog, but the recent headlines are a timely reminder for employers regarding liability for acts of employees.

It has been alleged that discrimination and harassment of employees at Fox News makes its parent company, 21st Century Fox, unsuitable to launch a takeover of Sky. This highlights how the acts of individuals can affect the employer and employers need to know when they may be at risk for the acts of their employees and what steps they can take to mitigate that risk.

Under the Equality Act 2010, anything done by an employee in the course of their employment is treated as having also been done by the employer. This is regardless of whether the employee’s acts were done with the employer’s knowledge or approval. This means that an employer can be “vicariously liable” for discrimination or harassment committed by an employee.

Critical is that the acts of the employee must have been done “in the course of employment” but what does this mean? The decisions of a manager, for example, in deciding whether to discipline or dismiss an employee, will always be acting in the course of employment. Further, harassment of an employee by a colleague in the workplace will almost certainly be covered. However, the dividing-line becomes blurred with conduct outside of the workplace and out of normal working hours, particularly at social gatherings. Common factors likely to be taken into account include:

• Where the incident took place – was it at work or outside of work?
• Was the victim or the perpetrator working at the time?
• Did the incident take place at a work social event or an unrelated event?
• How close in time was the event to starting or leaving work?

However, in all cases the decision is for the tribunal to reach on the particular facts.

There is a defence available to an employer if it can show that it took “all reasonable steps” to prevent the employee from doing the discriminatory act or from similar acts. Reasonable steps will usually include:

• Having and implementing an equal opportunities policy and an anti-harassment and bullying policy, and reviewing such policies as appropriate;
• making employees aware of the policies and their implications;
• training managers and supervisors in equal opportunities and bullying and harassment issues;
• taking steps to deal effectively with complaints, including taking appropriate disciplinary action.

It is not just a case of prevention being better than cure. Prevention is the only defence as these steps must have been taken before the acts complained of.

Employers cannot guard against every eventuality but there are key things that they can do now to protect against the risk of future claims. As always we would be delighted to assist.

If you have any questions regarding this topic or any employment issue, please contact Linky Trott or any member of the Edwin Coe Employment team.

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