Whodunnit? Employers beware of legal claims against more than one person…
Who is responsible for an unlawful act? Sometimes it’s not just one person, but multiple people who potentially ‘carry the can’. Employment law specialist Jane Farrell uses the current predicament of former Foreign Secretary Jack Straw as an example …
Mr Straw is being sued by Abdel Hakim Belhadj, a Libyan political opponent of Colonel Gaddafi. Mr Belhadj claims that in 2004 Mr Straw authorised an operation by the US Central Intelligence Agency to send him to Libya via UK territory. Where, he says, he was then tortured by the Libyan authorities. Mr Belhadj claims that his removal to Libya was unlawful, and is seeking damages from Mr Straw for the harmful effect of his alleged treatment there.
Mr Belhadj is also bringing similar legal proceedings against the UK Government, the UK security forces and an officer in MI6. So even if his claims against some of these people fail, he could still be awarded damages for any that succeed.
Mr Belhadj’s claim is a high-profile example of the way that some cases can be pursued against more than one person. In employment law, this most commonly happens with discrimination claims.
The Equality Act 2010 says that anything done by an employee in the course of their employment must be treated as also having been done by their employer. In legal terminology, this is called vicarious liability and means that the employer is legally responsible for an employee’s actions, if done in the course of their employment.
Vicarious liability allows an employee who’s been treated in a discriminatory way by colleagues who were acting in the course of their employment to bring claims not only against the individuals involved, but against the employer too. It makes sense to do this, as the employer usually has more funds available to pay compensation.
But the Equality Act also allows employers to try and defend such claims if they can show that they took all reasonable steps to prevent the employee(s) from doing that – or indeed any – discriminatory action. It’s known as the ‘statutory defence’.
For example, employers can argue that they gave their employees training, instructions or warnings not to act in a discriminatory way. So they should not be held responsible if their staff ignored them and went on to discriminate anyway. If they can show that they did take sufficient steps, they will not be responsible for the discrimination, or end up having to pay compensation for it.
So the lesson for employers is this. The more you can do to stop your employees from discriminating, the more you reduce your chances of becoming one of those respondents to a discrimination claim.