Equal Opportunity On Line Training Module 1: Legal Overview

Liability

There are three main forms of liability:

• Vicarious liability
• Individual liability
• Accessory liability

Vicarious Liability

An employer is liable for discriminatory actions of employees in the course of their employment.

To avoid this form of liability, employers need to demonstrate that they 'took all reasonable precautions to prevent the discrimination from occurring'.

Principles:

• 'reasonable steps' must be active, preventative measures (policies, communication of these policies across the organisation, effective grievance handling procedures, regular training etc);
• the obligation to prove that reasonable steps were taken rests with the employer;
• not knowing that the discrimination occurred is not a defence.

Individual Liability

Employees are responsible for their actions if they result in unlawful discrimination. Ignorance of the law is not an acceptable defence. Where an employee has been trained and apprised of the employer's policies and equal opportunity related practices failure to comply with these policies will result in the employee being held personally liable.

Accessory Liability

Occurs when a person incites (causes, authorises, induces, encourages, aids or assists) another person to discriminate. A person might be deemed to be liable as an accessory if it can be shown that that person knew about previous conduct, and took no action to prevent subsequent discrimination or harassment from taking place.

With these laws, as with many others, intention is irrelevant. Misguided actions are no defence if they have the effect of denying equality of opportunity.

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