(1)Anything done by a person (A) in the course of A's employment must be treated as also done by the employer.
(2)Anything done by an agent for a principal, with the authority of the principal, must be treated as also done by the principal.
(3)It does not matter whether that thing is done with the employer's or principal's knowledge or approval.
(4)In proceedings against A's employer (B) in respect of anything alleged to have been done by A in the course of A's employment it is a defence for B to show that B took all reasonable steps to prevent A—
(a)from doing that thing, or
(b)from doing anything of that description.
(5)This section does not apply to offences under this Act (other than offences under Part 12 (disabled persons: transport)).
Cases considering section 109 45
[2017] UKSC 65 · 25 October 2017Limits
Did not generally attribute a misconduct panel’s collective exercise of statutory disciplinary powers to the chief officer because panel members were not necessarily employees acting in the course of employment. (see paras [13]; [32])
Did not attribute the panel’s disciplinary acts to the chief officer as principal because the Regulations conferred the relevant powers directly on the panel, not on it as an agent. (see paras [13]; [32])
[2025] EWCA Civ 592 · 7 May 2025Interprets
Attributes acts done by an agent for a principal, with the principal’s authority, to the principal. The court held that agency has its ordinary common-law meaning and that RB Group’s benefit scheme did not make it RB Health’s agent without express or implied assent to act on RB Health’s behalf (see paras [52]–[65], [76]).
Provides that acts done by an employee in the course of employment are treated as done by the employer. The provision was reproduced as part of the statutory framework, but the decision concerned section 109(2) and agency rather than subsection (1) (see para [11]).
Treats an act done by an agent for a principal with the principal’s authority as also done by the principal. The court held that RB Group’s authority came from its own LTIP rules, with no evidence of assent or authorisation by RB Health; section 109(2) therefore did not make RB Health liable (see paras [52]–[65], [76]).
Provides that the principal’s or employer’s knowledge or approval is immaterial to attribution. The judgment reproduces the provision but does not analyse subsection (3) separately (see para [11]).
[2018] EWCA Civ 1203 · 24 May 2018Limits
A principal is liable for an agent’s discriminatory conduct done in carrying out authorised functions. The liability is not confined to acts directed at third parties with whom the agent can affect the principal’s legal relations. (see paras [19]; [42]-[44])
Section 109(3) confirms that a principal may be liable even without knowledge or approval of the particular discriminatory act. It supports the construction adopted for section 109(2). (see paras [16]; [19])
The reasonable-steps defence is available to employers but not principals. That apparent anomaly could not justify an otherwise incorrect narrowing of section 109(2). (see paras [16]; [45])
25 more judgments, and what each says about section 109, are in the
case-law panel in the full Act.
355.This section makes employers and principals liable for acts of discrimination, harassment and victimisation carried out by their employees in the course of employment or by their agents acting under their authority. It does not matter whether or not the employer or principal knows about or approves of those acts.
356.However, employers who can show that they took all reasonable steps to prevent their employees from acting unlawfully will not be held liable.
357.Employers and principals cannot be held liable for any criminal offences under the Act that are committed by their employees or agents, except for those in the provisions on transport services for disabled people in Part 12 of the Act.
358.This section replaces similar provisions in previous legislation. It is designed to ensure that employers and principals are made responsible for the acts of those over whom they have control. The section works together with the provisions on “Liability of employees and agents” (section 110), “Instructing, causing or inducing contraventions” (section 111), and “Aiding contraventions” (section 112) to ensure that both the person carrying out an unlawful act and any person on whose behalf he or she was acting can be held to account where appropriate.