“I have a member of staff who is claiming race discrimination against me because a few of the employees in the workshop were making some racist jokes.  They didn’t mean to offend him and it was really just a bit of ‘banter’ at lunch, but now my employee has gone sick off saying I am liable?  Is that right and what can I do?”

Under the Equality Act 2010 harassment is unwanted behaviour relating to a protected characteristic (such as sex, race, age etc) which has the purpose or effect of violating someone’s dignity or which creates a hostile, degrading, humiliating or offensive environment.

If a comment is found to constitute harassment then the employee who has suffered harassment can succeed in  a claim in an Employment Tribunal (albeit they are legally obliged to lodge it with ACAS first to see if can be settled) and ask the Tribunal to award compensation.

It is important to note from the above definition that the intention of those who are alleged to have harassed is not relevant to liability.  The fact, therefore, that any comment uttered was intended as a “joke” or “banter” is unlikely to be a defence.  Not that the intention is legally irrelevant, because the more serious and purposeful the harassment the larger any Tribunal award is likely to be.

In the above scenario, the fact that the comments were made at lunchtime is also not relevant as a Tribunal is likely to find that it was in the course of employment.  With acts which happen wholly outside of the course of employment of course, that is different, and the employer is unlikely to be liable.

In law, it is usually the case that an employer will be found to be “vicariously liable” for the acts of his or her employees.  This means that, in the above scenario, even though the boss / employer didn’t encourage or condone the behaviour, if an Employment Tribunal claim was pursued, the employer would end up paying any award on behalf of its employees.

An employer can escape such liability and argue that the individual who made the harassing comment is alone liable, but to do so the employer has to establish that it took all reasonable steps so that such behaviour / comments were not made by its employees. That is usually a high burden on an employer who will need to demonstrate comprehensive training on the discrimination, harassment and the Equality Act with its employees in order to discharge the burden.

If you are the employer and find yourself in a similar situation then we would encourage you to seek advice via the RMIF legal help line.  Although the steps an employer takes after any harassment takes place may not allow it to wholly escape liability, nevertheless the action it takes on learning of the discrimination including for example disciplinary proceedings, apologies, Equality Act training for the perpetrators (and even, if appropriate, an offer of compensation) can all help to mitigate the employer’s position and greatly reduce any award.


Motor Industry Legal Services

Motor Industry Legal Services (MILS Solicitors) provides fully comprehensive legal advice and representation to UK motor retailers for one annual fee. It is the only law firm in the UK which specialises in motor law and motor trade law. MILS currently advises over 1,000 individual businesses within the sector as well as the Retail Motor Industry Federation (RMI) and its members.