Discrimination claims: liability for discrimination

A school has been found liable for the discriminatory acts of a head teacher and a teacher. The case acts a timely reminder that schools can be found liable for the discriminatory acts of their employees carried out in the course of their employment. Schools have a defence if they can show that they took all reasonable steps to prevent the discrimination but this can be difficult to prove.

From 26 October 2024, schools became subject to the new statutory duty on employers to take reasonable steps to prevent sexual harassment of their employees in the course of their employment. Clearly a school that fails to comply with that duty will not be able to defend a sexual harassment claim on the basis it took all reasonable steps to prevent the harassment.

Read below for further information on the case of Baldwin v Cleves School and others.

Baldwin v Cleves School and others

The Employment Appeal Tribunal has ruled that once a school had been found liable for the discriminatory acts of its teachers, it was not open to an Employment Tribunal to find that the teachers were not also personally liable.

Miss Baldwin is disabled and worked as an newly qualified teacher until she resigned in response to a number of incidents at the school. She claimed disability discrimination against the school, the head teacher and another teacher, with the Employment Tribunal finding that there had been two acts of discrimination :

• An email from her NQT mentor (a teacher employed by the school) to her PGCE tutor requesting information about Miss Baldwin’s health, which the Tribunal deemed to be sent because of her perceived disability; and
• The head teacher’s comments in an NQT report, suggesting Miss Baldwin lacked integrity, which the Tribunal found to be related to her disability.

The Employment Tribunal went on to find that the school was liable for those discriminatory acts under s109 Equality Act 2010 (EqA) which provides that anything done by an employee in the course of their employment is treated as also having been done by their employer. However, it found that the head teacher and teacher were not personally liable because it considered that their discriminatory acts were misguided attempts to address a complex situation.

Miss Baldwin appealed the Tribunal’s finding that the teacher and head teacher were not personally liable for the discrimination, and the EAT upheld her appeal, ruling that once a Tribunal has found that an employee has committed an act of discrimination for which the employer is liable, it does not have a discretion to find the employees not personally liable.

What does this mean for schools?

Schools can be held liable for discriminatory acts committed by their employees in the course of their employment. “The course of employment” is construed widely and can extend to conduct off the premises and out of normal working hours, particularly at social gatherings.

Employers have a defence if they can show that they took all reasonable steps to prevent the discrimination, but this can be difficult to prove. Reasonable steps will include, but are not limited to:

• Having and implementing an equality policy and an anti-harassment and bullying policy, and regularly reviewing those policies
• Making all employees aware of the policies and their implications
• Providing adequate training to all staff on equal opportunities and discrimination. Managers and supervisors should also receive additional training in identifying and handling equal opportunities and harassment issues
• Assessing the risks and taking steps to reduce them
• Considering any initiatives proposed by employees and acted on them if it would be reasonable to do so
• Taking steps to deal effectively with complaints, including taking appropriate disciplinary action.

From 26 October 2024, schools came under a new statutory duty to take reasonable steps to prevent sexual harassment of their employees in the course of their employment. Clearly, an employer that fails to comply with that duty will not be able to defend a sexual harassment claim on the basis it took all reasonable steps to prevent the harassment. The EHRC’s Technical Guidance explains in more detail what steps an employer might be expected to take, both in terms of the all reasonable steps defence to discrimination and harassment claims and in terms of the new duty to prevent sexual harassment. For further information on the new duty and the EHRC’s guidance, click here.

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