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Discriminatory acts by agent: Who's liable?

For assistance, we turn to the recent appeal before the EAT:Mahood v Irish Centre Housing Limited
(Appeal No. UKEAT/0228/10/ZT). “The Claimant [who described himself as being of Irish national origin
and a protestant by religion] complained that [an agency worker] had made derogatory remarks about
[him]." I shall refer to the Claimant as ‘EF’, the agency worker as ‘CD’ and the employer as ‘X charity’.
Following EF’s successful grievance taken out against CD an altercation between the two took place and X
charity, “decided that until the dispute was resolved [EF] should go home.” Simply put, it was the words, “go
home” that found the successful complaint of victimisation, which the EAT were ‘surprised at’ but, like I said,
as there was no cross appeal against that part of the decision the matter remained there. Due to X charity’s
concerns over its not having received EF’s CRB clearance it suggested that if it did not receive such
clearance by a specified date EF would have to leave. In addition to the said claim for victimisation, EF
presented a claim to the ET for racial and religious discrimination against X charity on the grounds (it is not
entirely clear) that X charity was somehow vicariously liable for the acts of CD. The ET found that EF’s
dismissal was not on the grounds as alleged by him, “but was because of the absence of CRB checks.”

Turning our attention to the law. s32 of the RRA 1976 deals with liability of employers and principals, which
states: (1)Anything done by a person in the course of his employment shall be treated for the purposes of
[the RRA 1976] (…) as done by his employer as well as by him, whether or not it was done with the
employer’s knowledge or approval; (2) Anything done by a person as agent for another person with the
authority (whether express or implied, and whether precedent or subsequent) of that other person shall be
treated for the purposes of [the RRA 1976](…) as done by that other person as well as by him; (3) In
proceedings brought under [the RRA 1976] against any person in respect of an act alleged to have been
done by an employee of his it shall be a defence for that person to prove that he took such steps as were
reasonably practicable to prevent the employee from doing that act, or from doing in the course of his
employment acts of that description.”

References above to, “…his employer…”, “…the employer’s knowledge or approval…”, “…as agent for
another person…”, “…by an employee of his…” and “in the course of his employment” are to either an
employee/employer or principal/agent relationship. It is worth noting that it does not necessarily follow that if
one is an employee of ∆ company s/he cannot be an employee of ß company, as, “in certain circumstances
both the supplier of the worker and the end user could be vicariously liable for the acts or omissions of the
worker if the facts justified a conclusion that both acted as his employer.”

Answer: Therefore, can X charity be liable for the alleged discriminatory acts of CD? May be, May be not.
Well, X company could be liable (subject to the statutory defence under s32(3) of the RRA 1976) for its
‘employee’, which CD was not, or, as stated by the EAT, “an employer would be liable for the acts of an
agency worker exercising authority, or controlled by the Respondent or who has the Respondent’s authority
to do the acts in question where those acts are done in a discriminatory manner but are just as capable of
being done in a lawful manner”.

The answer becomes clearer when one starts by asking the basic questions (whether CD was an
employee or was the respondent exercising authority, controlled etc), but determining the answers to those
basic questions, well, that’s another matter!

-- Ryan Clement is a practising barrister at Conference Chambers: www.conferencechambers.com. He
specialises primarily in general commercial, construction and employment law. He accepts instructions
from both solicitors and the general public through the Bar Public Access Scheme. He provides training to
companies on all aspects of employment and some commercial law. To instruct Ryan or obtain further
information on his full areas of work please contact Conference Chambers.

Conference Chambers