This guide is maintained as a current resource for July 2026 and covers only the laws of England and Wales. Information is for general guidance, not legal advice. Consult a qualified solicitor for advice specific to your situation.
Detailed guide on employer liability for discrimination by managers and staff in England and Wales. Explains vicarious liability under the Equality Act 2010, employer defences, individual liability, and practical risk management for workplace discrimination claims.
Employers in England and Wales have a legal obligation under the Equality Act 2010 to prevent workplace discrimination and can be held responsible for discriminatory conduct by their managers and employees. When discrimination occurs, both employees and employers can face liability in an employment tribunal. This article explains how employer liability works, the concept of vicarious liability, statutory defences, individual liability for discriminatory conduct, and practical steps organisations can take to reduce legal risk.
Discrimination and Employer Responsibilities
The Equality Act 2010 protects individuals from unlawful discrimination on the basis of protected characteristics, including age, sex, race, disability, religion or belief, sexual orientation, gender reassignment, pregnancy and maternity, and marriage and civil partnership. Employers must ensure that all aspects of employment-from recruitment and promotion to day‑to‑day treatment-are free from unlawful discrimination, harassment and victimisation.
Under the Act, employers have a statutory duty to prevent discrimination and protect the wellbeing of workers. Failing to prevent or appropriately respond to discriminatory conduct can lead to a tribunal claim and compensation orders against the employer.
Vicarious Liability: When Employers Are Responsible
What Is Vicarious Liability?
Employers can be held liable for discriminatory acts committed by their employees or agents “in the course of employment”. This is known as vicarious liability and applies to conduct by managers, supervisors, support staff and others whose actions occur within the scope of their employment. It does not matter whether the employer knew of or approved the act; liability arises automatically if the statutory conditions are met.
For example, if a manager makes discriminatory comments about an employee's protected characteristic during a work meeting or sends discriminatory emails in their professional capacity, the employer can be liable for that conduct. The same applies to behaviour at work‑related events outside the workplace, such as team social events or business trips, where the conduct is connected to the employment.
Employment Relationship and Scope of Employment
For vicarious liability to arise, there must be a recognised relationship between the employer and the person who committed the discriminatory act. This includes:
- Employees under contract.
- Workers and apprentices engaged in the business.
- Agents acting under the employer's authority.
- In some contexts, temporary or deemed “employees” if integrated into the business.
The discriminatory act must be sufficiently connected to the duties or role of the individual. Tribunals look at whether the conduct arose “in the course of employment,” for example discriminatory remarks made during work duties or conduct closely linked to work activities.
Statutory Defence: Taking All Reasonable Steps
Although employers are generally liable for discriminatory acts by staff, the Equality Act 2010 provides a statutory defence under section 109 if the employer can demonstrate that it took “all reasonable steps” to prevent the discriminatory act. This is a high bar and seldom easy to satisfy. Employers must show proactive measures taken before the discriminatory conduct occurred.
Reasonable steps typically include:
- A comprehensive equal opportunities and anti‑discrimination policy.
- Regular training for managers and staff on equality, diversity and discrimination.
- Clear procedures for reporting and investigating complaints.
- Prompt action taken when discriminatory conduct is reported, including investigation and appropriate disciplinary measures.
- Ongoing monitoring and review of policies to ensure effectiveness.
Tribunals assess whether steps were proportionate and genuinely aimed at preventing unlawful conduct. Superficial policies or training that is outdated or ineffectively applied are unlikely to satisfy this defence.
Employer Liability for Different Types of Discriminatory Conduct
Direct and Indirect Discrimination
If a manager or staff member directly discriminates against an employee because of a protected characteristic, the employer is generally liable through vicarious liability. Similarly, policies or practices applied by staff that result in indirect discrimination (where a neutral policy disproportionately disadvantages a protected group) can also give rise to employer liability if not justifiable.
Harassment and Victimisation
Discriminatory conduct that amounts to harassment or victimisation can also trigger employer liability. Harassment involves unwanted conduct related to a protected characteristic that violates a person's dignity or creates an intimidating, hostile or offensive environment. Victimisation occurs when someone is treated less favourably because they have made or supported a discrimination claim or complaint. Employers are liable for such acts by staff unless they can show that all reasonable steps were taken to prevent them.
Individual Liability for Discriminatory Acts
In addition to employer liability, the individual who committed the discriminatory act can also be personally liable under section 110 of the Equality Act 2010. This means that managers, supervisors or other employees may be named as second respondents in a tribunal claim alongside the employer. Personal liability applies even if the employer successfully relies on the statutory defence, provided the individual did not reasonably rely on a correct statement from the employer that their conduct was lawful.
This dual liability recognises that both the individual's conduct and the employer's failure to prevent discrimination can independently cause harm.
Practical Implications and Risk Management
To reduce the risk of liability for discriminatory acts by managers and staff, employers should implement and maintain a robust framework for preventing discrimination:
- Policy development: Draft clear, accessible anti‑discrimination and equality policies.
- Training: Provide regular, up‑to‑date training tailored to roles with people management responsibilities, emphasising real‑world scenarios and legal obligations.
- Reporting and investigation: Establish reliable systems for reporting discrimination and ensure complaints are thoroughly investigated.
- Disciplinary action: Respond promptly and consistently to breaches of policy.
- Leadership culture: Promote diversity, inclusion and respectful behaviour at all organisational levels.
Effective documentation of policies, training and responses to complaints can also support the statutory defence if a tribunal challenge arises.
Time Limits and Tribunal Claims
Discrimination claims in the employment tribunal must be brought within strict time limits, generally three months minus one day from the last act of discrimination. Early engagement with ACAS early conciliation is mandatory before lodging a formal claim and can help resolve matters without tribunal proceedings. Employers should be aware of these procedural requirements when responding to potential claims.
Common Questions
Can a manager be held personally liable for discrimination?
Yes. Under section 110 Equality Act 2010, individuals who commit discriminatory acts can be personally liable, and claimants can include them as respondents in tribunal claims alongside the employer.
Does employer liability depend on knowledge of the act?
No. Under vicarious liability, an employer can be held responsible even if it did not know about or approve the discriminatory act, so long as it occurred “in the course of employment.”
Summary
Employers in England and Wales can be held liable for discriminatory acts by managers and staff under the Equality Act 2010 through the principle of vicarious liability. This liability applies when discriminatory conduct occurs “in the course of employment,” and can cover direct discrimination, indirect discrimination, harassment and victimisation. Employers have a statutory defence if they can show they took all reasonable steps to prevent discrimination, but this is a high standard. Individual employees can also be personally liable for their discriminatory acts. To mitigate liability, employers should maintain robust policies, provide comprehensive training, respond effectively to complaints, and foster an inclusive workplace culture that prevents discrimination before it arises.
