A recent story dominating the sports media’s headlines highlights the importance of employer’s continuing to ensure that they take adequate steps to limit the possibility of them being held liable for acts that may be carried out by an employee.
It has been reported that Mark Sampson, the England women’s national football team manager, allegedly made racist comments to a number of different players selected to play for England which, if true, would have occurred while he in the course of his employment. One incident allegedly occurred before England played Germany at Wembley in 2014, where Eni Aluko claims that Sampson made a comment relating to her Nigerian relatives and the Ebola Virus. Sampson denies making such comments. Investigations have since taken place and the Football Association (Sampson’s employer) have cleared Sampson of any misconduct and wrongdoing in relation to these allegations.
Ms Aluko made a complaint to the FA about Mr Sampson’s comments to both herself and to others. A settlement agreement was entered into between the FA and Ms Aluko which saw Ms Aluko receive £80,000 for agreeing not to pursue matters before an Employment Tribunal. However, matters have no become public which has led to the history of events being reported in the national press.
Employers should be very aware that they can be deemed liable for the acts and omissions of its employees, if it can be made clear that the acts or omissions took place in the course of employment. For example, if the allegations made against Mr Sampson were proved to be true, then the English FA could be liable for his wrongdoings.
In regards to this particular issue, Mr Sampson’s comments related to Ms Aluko’s and her colleague’s race. Under section 109 of the Equality Act 2010, “Anything done by a person (A) in the course of A's employment must be treated as also done by the employer” regardless of whether or not “that thing is done with the employer's or principal's knowledge or approval”. This clause therefore allows employers and principals to be found liable for acts of discrimination, harassment and victimisation carried out by their employees in the course of employment or by their agents acting under their authority. It must also be noted that an employer’s liability does not come to an end when the employment is terminated – the employer can still be liable.
It is possible for an employer to rely on a statutory defence to an allegation that it is liable for an employee’s conduct. An employer can avoid being found liable for anything alleged to have been done by A in the course of A’s employment, if it can be shown that B took “all reasonable steps” to prevent A “from doing that thing, or, from doing anything of that description”. This is the statutory defence found at s.109(4) of the Equality Act 2010. Therefore, if an employer proves that it took all reasonable steps to prevent an employee from committing the act of discrimination, harassment or victimisation, then it may escape liability.
So, what steps can an employer take to reduce the risk of being liable for an employee’s actions?
What amounts to a reasonable step will vary from case to case, but the above guidance would certainly be the minimum standards an Employment Tribunal would expect to see should the reasonable steps defence have any prospect of success.
Further guidance on discrimination issues in the workplace can be found here.