May & Baker Ltd t/a Sanofi-Aventis Pharma v Okerago
Under the 1976 Race Relations Act (RRA), employers are liable for the acts of their employees (or agents) and are also liable if they knowingly “aid” an employee in carrying out an unlawful act. In May & Baker Ltd t/a Sanofi-Aventis Pharma v Okerago, the Employment Appeal Tribunal (EAT) said that an employer cannot be held liable for “aiding” someone to do something after the incident has taken place.
Basic facts
Mrs Okerago worked for Aventis as a pharmacy inspector. In June 2006, a white agency worker (Terri Dower) swore at her and told her to go back to her “own f***ing country”, when she said that she would not be supporting England in the World Cup.
Although she did not complain about this at the time, Mrs Okerago raised the matter as part of a general grievance that she lodged in December 2006. The company did not investigate this claim and made no specific findings about it in its overall investigation.
When she was dismissed in March 2007, Mrs Okerago claimed direct race discrimination and harassment, among other things. The company argued that it could not be liable for Ms Dower’s actions as she was not an employee.
Relevant law
Section 32 of the RRA says that employers are liable for “anything done by a person in the course of his employment” or anyone acting as an agent for that person.
Section 33 states that anyone who “knowingly aids another person” to do an unlawful act will be treated as though they had done the act themselves.
Tribunal decision
The tribunal decided that the World Cup incident had happened as Mrs Okerago had described it and that the company had failed to promptly and adequately investigate her complaint. Instead it had been complicit in allowing an environment to continue where such conduct could take place.
It said the company was liable for Ms Dower’s actions as the company had treated her as though she was an employee and were therefore caught by section 32 of the RRA. As it had failed to investigate Mrs Okerago’s complaint properly, it had by its subsequent conduct condoned the acts of Terri Dower and were therefore liable under 33 RRA as well.
EAT decision
The EAT upheld the company’s appeal. It said:
• There were no findings of fact from which the tribunal could conclude that Ms Dower was either an employee or an agent of the company
• Under section 33, a person cannot “aid” someone else to do something they have already done. Given that everything the company did took place after the alleged discrimination, it could not have “aided” an incident after it had happened.
• “Allowing an environment where particular conduct could take place” did not amount to “knowingly aiding the conduct” as required under section 33
• Even if the company had “aided” Ms Dower to do the alleged act, the EAT said that the act would not have been unlawful in itself as she was not an employee. If the act was not unlawful in itself then the company could not be liable for knowingly aiding an unlawful act