Third party discrimination
Labour & European Law Review Weekly Issue 260 15 March 2012
The Sex Discrimination Act (now replaced by the Equality Act) states that employers can be held liable for the discriminatory acts of their employees. In Commissioner of Police of the Metropolis v Weeks, the Employment Appeal Tribunal (EAT) said that even if a third party has committed those acts, the employer can still be held liable.
Ms Weeks had been a civilian employee of the Metropolitan police since 1991, working most recently in the Joint Intelligence Unit where she was line-managed by a City of London police (CLP) officer, DS Thomas.
DS Thomas was responsible for formally assessing her performance and determining the hours that she worked. This included consideration of an application that she submitted for flexible working, which he refused. She successfully appealed his decision.
Shortly after that, DS Thomas sent a letter to the Metropolitan police service (MPS) human resources manager requesting that Ms Weeks’ shift allowance payment be stopped.
She brought claims of sex discrimination against the Commissioner for the acts committed by DS Thomas. The MPS claimed she could not bring claims in respect of an act committed by a CLP officer.
The Tribunal found in her favour.
It said that the Metropolitan police were aware that DS Thomas was making decisions on their behalf about important matters to do with Ms Weeks’ employment relationship with the force. It certainly knew that he had refused her application for flexible working and that he had asked HR to stop her shift allowance.
“Those” said the Tribunal “are important matters in an employment relationship and can only be determined by a person's employer or by someone who the employer has authorised to act on his behalf.
“A third party cannot determine these employment issues without the express or implied consent of the employer of the person in question. The Respondent was aware that DS Thomas was making these decisions on its behalf....
“At no stage did anyone say that DS Thomas did not have the authority to make these decisions and that they were not bound by his decisions”.
Dismissing the appeal, the EAT said there were two crucial questions. The first was whether DS Thomas was in a position to make the Commissioner liable for his acts; and the second was whether the Tribunal had applied the law correctly.
It said that it was clear from the case of Chief Constable of Cumbria v McGlennon that “an agency can exist between a chief officer of police and someone else, even though that someone else is an officer and even though that officer is an officer under the direction and control of another chief officer”.
The reality of the situation, it said, was that DS Thomas was Ms Weeks’ line manager who made decisions affecting her employment. These were carried out (except for the flexible working appeal) by staff and officers of the Commissioner.
That being so, the Tribunal was entitled to find that the Commissioner had given express or implied consent for DS Thomas to carry out those functions for him. It was clear that the Commissioner was aware of decisions being made by DS Thomas and “it is no major leap to say that these were either expressly or impliedly made on his instructions and with his consent, and on his behalf”.
It therefore rejected the appeal.
This type of situation can sometimes arise when a number of people are brought together for a particular task, each of whom have different employment relationships.