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Step 2: check if your employer is responsible for the unfair treatment

This advice applies to England

You don't have to have a written contract for your employer to be responsible for discrimination against you. You’re covered by the law if you’re:

  • an employee
  • an apprentice
  • working under an agreement with them that you’ll personally do work and they’ll pay you for it
  • a former employee

This includes:

  • casual and zero hours workers
  • some self-employed people
  • freelancers

There are extra rules to protect people who are employed by one business but work for another, such as agency workers.

Section 39 of the Equality Act 2010 sets out the ways in which employers are not allowed to discriminate.

If your contract says you can send someone else to do the work

You might still be protected if you don’t have complete freedom to send anyone you like to do the work. You’d have to argue that the term in your contract doesn’t reflect your real work situation.

Example

Carol works for a car valeting company based at an airport. She has a written contract which says she’s self-employed and can send another person to do her job if she doesn’t want to go into work.

In reality, workers need security clearance to work at the airport and it’s unlikely they’d let her bring in whoever she wants to do the work. She’s also told when to work, has to use the company’s cleaning products and wear their uniform.

Because Carol doesn’t send someone to do the work in her place, and works under the authority of the valeting company she’ll be protected under the Equality Act 2010.

If you’re paid by one company but work at another - agency workers and contract workers

If you’re an agency or contract worker you can complain to either the company that employs and pays you or the place you actually work (called the ‘Principal’ in the law). You could also complain to both - it depends who’s actually responsible for the discrimination. 

Example

Paola is employed by an agency which has found her work at a local factory doing packing work. When she tells the manager at the factory she’s pregnant he tells her to go home because they need to talk to the agency to make sure the work is safe for her.

The agency calls her later that day and tells her the factory don’t want her to work there any more. The agency say they’ll try to find her other work but she hears nothing from them. Paola could take action against both the factory and the agency if the reason they’ve stopped giving her work is because she’s pregnant.

Contract and agency workers are protected from discrimination under section 41 of the Equality Act 2010.

Check if you’re a worker who’s protected in another way

Some types of workers are protected from discrimination even though they don’t normally have employment rights, for example:

  • police officers
  • office holders
  • members of Limited Liability Partnerships
  • barristers and advocates

 These situations are covered in Chapter 11 of the EHRC Code of Practice on Employment.

People who won’t be covered

There are some groups of people who aren’t covered by the Equality Act 2010.

Volunteers

You won’t be able to take action about discrimination at work if you’re a volunteer.

People working illegally

The two most common situations in which you might be working illegally are:

  • where you don’t have the right to work in the UK
  • you’re working in a situation where you’ve agreed with your employer to avoid paying income tax and national insurance

This can affect your ability to make a legal claim about discrimination but you should get specialist advice.

If you’re genuinely self-employed

You won’t be covered by discrimination law if you are genuinely self-employed. This means that you have a contract to work but you can send a substitute, are in control and can run your own business in order to make a profit. For example you’re probably self-employed if you can charge more for the work you do.

Check if your employer is responsible

Your employer is responsible for any discrimination done by any of your colleagues provided the discrimination happens to you at:

  • work
  • work-related events or business trips - like an office away day
  • social events organised by them - like an office Christmas party or a work-related dinner

If a colleague is discriminating against you, they and your employer are both responsible. The name in the law for your employer’s responsibility is ‘vicarious liability’. This is covered in section 109 and section 110 of the Equality Act 2010.

You can’t usually take action against your employer if you’ve been discriminated against by your customers or staff from other companies. However, they still have a duty to protect you from discrimination if they know it’s happening.

They might also be responsible if the discrimination was done by someone they gave authority to, for example a consultant who made redundancies for them. The law calls this person an ‘agent’.

If you’re not sure whether your employer should have done more to protect you, you can get help from an adviser.

Your employer is responsible for the discrimination even if they didn’t know about it or approve of it.

Your employer might be able to argue they’re not responsible for the discrimination by a colleague if they can show they did everything they reasonably could to stop it happening.

It’s not enough for your employer to have an equal opportunities policy - they’ll need to show they couldn’t have reasonably done anything more.

Example

Jonathan is being sexually harassed by his manager. He complained to the human resources team but they haven't done anything about it.

Jonathan’s company has a policy against sexual harassment. They give all new managers training about it and tell them anybody who breaks the rules will be disciplined. However, Jonathan knows some of his colleagues have also complained about sexual harassment in his office and nothing has been done about it.

In this situation, the employer has taken steps to stop managers from harassing other colleagues at work. But they’ve ignored several complaints and they don’t have a policy for investigating them, so they probably couldn’t say they’ve taken all reasonable steps to stop harassment.

Jonathan could take action against his employer. They’ll be responsible for the harassment because it happened in work and they didn’t do enough to prevent it. He could also take action against his manager because they’re personally responsible too.

If you’re discriminated against by a colleague

You might be able to take action against them as well as your employer. Usually it’s better to take action against your employer, because you’re more likely to get them to make a change or pay compensation.

If the person who discriminated was told to or helped by someone else

The person who gave the orders could be responsible as well as the person who actually discriminated against you. For example if one of the directors of your company tells the HR team not to hire anyone over 50, the director and the HR staff could both be responsible.

The legal name for ordering someone else to discriminate is ‘instructing, causing or inducing discrimination’. The legal name for helping someone else to discriminate is ‘aiding discrimination’.

This is covered in section 111 and section 112 of the Equality Act 2010.

You can find out more in Chapter 9 of the EHRC Code of Practice on Employment.

Next steps

If your employer isn’t responsible you might still be able to solve your problem without using discrimination.

If you think your employer is responsible you need to find out what type of discrimination it is in step 3.

Previous Step 3
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