Discrimination Law Association
| Author | Camilla Palmer |
| Published date | 01 September 1995 |
| DOI | 10.1177/135822919500100209 |
| Date | 01 September 1995 |
International
Journal
of
Discrimination
and
the
lAw,
1995,
Vol.
1,
p.197-199
1358-2291/95
$10
©
1995
A B
Academic
Publishers.
Printed
in
Great
Britain
DISCRIMINATION
LAW
ASSOCIATION
RECENT
DISCRIMINATION
CASELAW
DEVELOPMENT
Editor:
CAMILLA
PALMER
VICARIOUS
LIABILITY
AND
HARASSMENT
Under the Sex Discrimination Act (SDA) and the Race Relations Act
(RRA) the employer
is
liable for acts
of
discrimination carried out by an
employee
in
the
course
of
his employment, whether
or
not
it
was done
with
the
employer's knowledge
or
approval. The employer has a defence
if
slhe can prove slhe took such steps 'as were reasonably practicable to
prevent the employee from doing that act...'.
In
Tower
Boot
Company
Ltd
v Raymondo Jones ( Case No. 35492/93
the
EAT
held that the 'nub
of
the test is whether the unauthorised wrongful
act
of
the servant
is
so
connected with that which he was employed to do as
to be a mode
of
doing it'. The majority held that appalling racial abuse
(including throwing metal bolts at the applicant's head, whipping him with a
piece
of
welt and burning his arm with a hot screwdriver) could not be
described as an 'improper mode
of
performing authorised tasks'.
The minority view was that the perpetrators were acting in the course
of
employment and that the very strict common law principles
of
vicarious
liability were not intended to be rigidly applied in discrimination cases, hence
the code
of
practice.
The majority view,
if
followed, could leave victims
of
serious
harassment with
no
remedy in the
IT.
The more outrageous the harassment
the less likely it
is
to
be 'in the course
of
employment'.
If
the employer
is
not liable under s32 because the harassment is not
done in the course
of
employment, it
is
unclear
if
the perpetrator will be
liable. s33 (which makes the perpetrator liable where the employer is liable)
does not appear
to
apply where the act is not carried out in the course
of
employment.
The same provisions apply in sex discrimination cases. The lack
of
remedy in sexual harassment cases may constitute a breach
of
the Equal
Treatment Directive.
In
Von
Colson the European Court
of
Justice (ECJ)
held that the Directive implied that the sanction had to be
of
such a nature as
to
ensure real and effective protection. The lack
of
remedy under the SDA
may
therefore be a breach
of
the Directive.
In Tower Boot
Co.
the
EAT
referred the case back to a tribunal to
consider whether
the
claim might have been upheld on the ground that the
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