Liability of employers and employees

Produced by Tolley in association with Hogan Lovells
Liability of employers and employees

The following Employment Tax guidance note Produced by Tolley in association with Hogan Lovells provides comprehensive and up to date tax information covering:

  • Liability of employers and employees
  • Vicarious liability of employers
  • Employer’s defence
  • Liability for agents
  • Employers’ liability for the actions for third parties
  • Liability of employees and agents
  • Instructing, causing or inducing contraventions
  • Aiding contraventions

An employer may be liable for contraventions of the Equality Act 2010:

  1. on its own behalf

  2. vicariously, for the acts of its employees

  3. as principal, for the acts of its agents

  4. by third parties, in the case of persistent harassment of employees

Employees and agents may also be personally liable for their own contraventions of the Equality Act 2010 (see ‘Liability of employees and agents’ below), provided the employer or principal is vicariously liable for it as well, or would be but for the fact thatthe employer establishes the employer’s defence (see defences to vicarious liability under ‘Vicarious liability of employers’ below).

An employer, principal, employee or agent may also be liable for:

  1. instructing, causing or inducing contraventions of the Equality Act 2010

  2. aiding contraventions of the Equality Act 2010

Vicarious liability of employers

An employer will be liable for any contravention of the Equality Act 2010 committed by a person it employs, provided thatthe act thatconstitutes the contravention is done in the course of thatperson’s employment.

A very broad variety of acts will be treated as being done ‘in the course of employment’. Protection is not restricted just to situations where the employee performs an act thatthey are required to do as part of their job, and does so in a discriminatory way. The context in which the act was performed matters more than the nature of the act itself, so important considerations will include factors such as whether or not:

  1. it occurred inside the workplace

  2. it occurred during working hours

  3. the employees involved were wearing work uniforms at the time

Employers will be vicariously liable even where the relevant act was done without the employer’s knowledge or approval.

An employer is not, however, vicariously liable for any criminal offence under the Equality Act 2010 committed by a person it employs.

Employer’s defence

It is a defence for an employer who would otherwise be vicariously liable for the acts of its employees to show thatit

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