The extent of employer and employee liability for discrimination cases in sport

This is the first in a series of blogs in which the sports law team at Matrix will be addressing a range of interesting topics, drawing on the considerable expertise of the sports team.

Discrimination and whistleblowing claims against well-known respondents often generate high levels of interest and publicity. The pressure attendant on such claims can be increased in cases where a claimant sues not only a corporate respondent – usually the employer – but also named individuals.

This will often be the manager or another high profile individual said to be involved in the acts alleged to be discriminatory or acts of detriment said to have occurred because an employee has made a protected disclosure. This raises the temperature of these claims and can impose a greater pressure on all respondents to settle, no matter what their views of the merits of the claim.

There have been recent examples of this in sports and other contexts. Dr. Carneiro sued both Chelsea FC and Jose Mourinho.¹ The Top Gear producer Oisin Tymon sued both the BBC and Jeremy Clarkson.²

The purpose of this article is to consider the bases upon which individuals may be liable as respondents and in consequence to identify some steps which respondents may be able to take to attempt to limit the extent to which named individuals are party to proceedings. Particular consideration is given to issues that may arise in the sporting context.

The basis and extent of an employer’s liability

The starting point for an understanding of how individuals may be liable as respondents is to appreciate the basis on which organisations such as employers may be liable for the actions of others. All decisions made on behalf of inanimate bodies, such as companies, are taken by real people. Thus a decision to demote or dismiss or subject someone to a detriment is taken by a person and bodies such as an employer will often be liable for the acts of those persons.

As a matter of the general law, employers are vicariously liable for the acts of their employees. So, for example, if a manager makes a decision about the treatment of an employee and does so in the course of the manager’s employment, the employer will be liable for that manager’s acts.

Discrimination

By section 109 of the Equality Act 2010, anything done by a person in the course of that person’s employment is treated as also done by the employer.

In the context of discrimination law, the range of things for which an employer may be liable can be extensive. In Jones v Tower Boot Co Ltd,³ the Court of Appeal adopted a broad definition of ‘in the course of employment’ and held that under the predecessors to the Equality Act, the concept was broader than the general law concept of vicarious liability.

In that case, an employee had been physically and verbally assaulted by another. The attacker was not acting on his employer’s instructions or with its authorisation. The employer said that the employee’s acts were purely of his own volition and outside the course of his employment such that the employer could not be vicariously liable for his actions. Therefore it argued that the employee’s acts were not done ‘in the course of employment’ as required by the legislation (in that case, the Race Relations Act 1976) and so the employer was not liable for the employee’s acts.

The logic of this argument, as the employer acknowledged, was that the more heinous the act, the lower the likelihood that the employer would be liable. The Court of Appeal rejected this and held that something was done ‘in the course of employment’ when a lay person would construe it as being done in that way and that this was not confined to cases where the employer would be vicariously liable at common law. Hence the potential for the employer to be liable under the discrimination statutes is greater than would be the case at common law applying principles of vicarious liability.

How great a difference there is between the Tower Boottest and ordinary principles of vicarious liability may now be open to question in the light of a very recent decision of the Supreme Court, Mohamud v WM Morrison Supermarkets.⁴ In that case, an employee of a supermarket who worked at a petrol station subjected a customer who asked him to do something to a vicious assault.

Lower courts had held that the employer was not vicariously liable on the basis that there was an insufficient connection between what the employee was employed to and his tortious conduct. The Supreme Court held that the employer was liable, finding helpful the question whether the employee’s conduct was ‘within the field of activities assigned to the employee’. In that case, the employee’s job included responding to customers’ inquiries. What the employee did, although inexcusable, was held to be ‘within the field of activities’ assigned to him.

The broad Tower Boot approach is reflected in the Equality Act, which, at Section 109(3), provides that it does not matter whether things done by individuals are done with the employer’s approval or even knowledge. Thus, for example, an employer has been held liable for sexual harassment inflicted by one employee on another at a pub after work or at a social event organised by the employer outside working hours.⁵

The consequence of this in the context of sports clubs seems to be that the club as employer may be liable for acts of discrimination by employees committed as part of changing room banter and travelling to matches. Discriminatory action by players towards officials would similarly appear to render the club as employer liable. There would be a case for saying that things done on any occasion which has a connection to the activities of a club would be ‘in the course of employment’ by players. Thus, for example, racially or sexually abusive language at award ceremonies and social events could all be argued to have a sufficient connection with the employment to affix a club with liability.

Whistleblowing

In relation to whistleblowing, section 47B(1B) of the Employment Rights Act 1996 provides that where a worker is subjected to a detriment by another worker in the course of that other worker’s employment on the grounds that the worker has made a protected disclosure, the thing done is treated as also being done by the employer. Section 47(1C) states, consistently with s 109(3) of the Equality Act, that it is immaterial to the employer’s liability whether the thing done by the employee was done with the knowledge or approval of the employer. In the context of whistleblowing, too, therefore, the range of things for which the employer could be liable is very broad.