Labour & European Law Review Weekly Issue 364 09 April 2014
Although employers can be found liable for discriminatory acts carried out by their employees, what happens in the case of someone employed by a third party? The Court of Appeal held in Kemeh v Ministry of Defence (MoD) that there would have to be “very cogent evidence”to show the duties they carried out as an employee of the third party employer were also duties that they performed as an agent.
Mr Kemeh, who is black, joined the British army as a cook in 2004. While stationed in the Falklands in 2010, he was subjected to two incidents of race discrimination. The first involved a civilian called Ms Ausher who was employed by Sodexo, a sub contractor of Serco which had a contract with the MoD to provide facilities management services. The second involved his immediate line manager, Sergeant Simmons.
On his return to the UK, Mr Kemeh brought two claims of race discrimination against the MoD under section 4 of the Race Relations Act (now incorporated into the Equality Act), which states that it is unlawful for "a person ... in the case of a person employed by him ... to discriminate against that employee …by subjecting him to a detriment."
Tribunal and EAT decisions
The MoD accepted that it was liable for the discriminatory act of its employee, Sergeant Simmons, and the tribunal accordingly awarded Mr Kemeh £12,000 for injury to feelings. However, it denied all liability for Ms Ausher’s act of race discrimination on the ground that she was not an MoD employee.
The tribunal disagreed, holding that it was liable, as she fell within the definition of an agent under section 32(2) of the Race Relations Act. As such, she was carrying out tasks for the MoD making it responsible for her discriminatory act.
The EAT overturned the decision, holding instead that there was no evidence that Ms Ausher wasacting as an agent of the MoD, but rather as an employee of Sodexo. It also reduced the compensation awarded to Mr Kemeh from £12,000 to £6,000.
Court of Appeal decision
The Court of Appeal agreed with the EAT that it was not appropriate to describe someone employed by a contractor as an agent just because they performed work for the benefit of a third party employer. Although Ms Ausher may be said in a general sense to be working for the benefit of the MoD, she was not acting on its behalf.
That did not automatically mean that Ms Ausher could never be deemed to be an agent of the MoD, but there would have to be very cogent evidence (beyond simply working) to show that the duties which she was obliged to carry out as Sodexo’s employee were also duties that she performed as an agent of the MoD.
Even if the MoD had the right to veto her presence, that limited degree of control came nowhere near constituting an authorisation by the MoD to allow Ms Ausher to act on its behalf with respect to third parties.
The EAT was also right to reduce the award on the basis that it was“manifestly excessive”. Although it was important that awards should not be pitched too low, thereby trivialising the harm, it was equally important that they should not be too high since that risked creating the impression that victims of discrimination were over-compensated and being given unfairly generous treatment when compared with victims of personal injury, for example.
The Court of Appeal considered the contract provisions of the Act which enable a contract worker to bring a claim for discrimination against the principal employer –which in this case was the MOD –but the provisions are not reciprocal so that a principal employer is not liable for the acts of contract workers. On that basis the Court considered that there was a loophole in the law as regards discriminatory acts of agents. However, the Court considered that it may have been possible to bring a claim in the County Court on the basis that the Act prohibits the provision of discriminatory services in this case by Sodexo.