The Court of Appeal this month considered the case of Mr Kemah v Ministry of Defence  EWCA Civ 91. Mr Kemah is black of Ghanian origin. He worked as a cook in the British Army and in June 2010 was stationed in the Falklands when he was subjected to two episodes of race discrimination.
In the first, he was abused by Ms A, a civilian who was employed by Sodexo as a butcher. Sodexo was a sub-contractor of Serco, who had a commercial contract with the MoD to provide facilities management services in the South Atlantic. Mr Kemah asked Ms A for some chicken pieces in order to make soup for the soldiers; she only gave him two pieces and when he asked for more she replied, “Why should I trust you? First you are a Private in the British Army and then you are black.” A week later, Mr Kemah was told to “shut up you dumb black b*****d” by his immediate line manager, Sergeant S.
Mr Kemah complained to his employer about both incidents and then brought proceedings in the Employment Tribunal. They found in both instances that the abusive comments were made. With regard to liability, under the provisions of the Race Relations Act 1976 an employer is liable for the acts of its employees, whether or not they were done with the employer’s knowledge or approval, unless the employer can show that it took such steps as were reasonably practicable to prevent the employee from that act. Furthermore, anything done by a person acting as agent for another (their principal) with their authority, shall be treated as done by the principal as well as the agent. Although the Act is no longer in force, its successor the Equality Act 2010 contains provision with almost identical wording.
The MoD therefore accepted that it was responsible for the discriminatory acts of Sergeant S as they were his employer. However they denied that they were also liable for the acts of Ms A as she was not employed by them. Mr Kemah argued that they were nevertheless liable as she was an agent carrying out tasks for the MoD and therefore they, as her principal, were liable for her actions. The tribunal agreed and found in his favour but the Employment Appeal Tribunal disagreed. Mr Kemah therefore appealed to the Court of Appeal.
The difficulty for Mr Kemah was that under ‘common law’ principals relating to principals and agents, the MoD could not be described as Ms A’s principal as she was not acting for them or on their behalf. She was acting as an employee of Sodexo, who in turn were fulfilling a contract agreed with Serco, who in turn had an agreement with the MoD. The MoD’s direct relationship with Ms A was tenuous, and they did not have any direct control over her actions. Mr Kemah tried to argue that the purpose of the statute was to protect employees from discrimination suffered during the course of their employment, and that if, as here, there was a degree of direction and integration between the MoD and the employees of Sodex, then in the employment context, this should be considered as an agency relationship.
However, the Court of Appeal accepted the MoD’s argument that this was too wide a definition of agency and that the critical factor of a principal’s authority over its agent was missing in this case. His appeal was therefore unsuccessful.
If Mr Kemah was right, then the MoD would be liable for the acts or omissions of individuals over whom they had no direct authority or control. The Court fully recognised the force of the ‘policy argument’ put forward by Mr Kemah; that if he did not succeed in his claim against the MoD then he had no remedy at all for Ms A’s discriminator act, since he could not bring proceedings against Sodexo since they were not his employer. However, the Court decided that if the law were to be extended in this way, that was a matter for Parliament rather than the courts, and consideration would no doubt have to be given to whether or not it was the immediate employer or the end user who should bear the legal responsibility.
This case therefore serves to highlight two important points when it comes to discrimination in the workplace; first, that an employer is liable for the discriminatory acts of its employees, subject to the defence noted above. Employers need to take care to ensure that they provide adequate training to their staff on the types of behaviour, which can amount to discrimination and those characteristics which are protected, if they are to have any hope of relying on the defence. Secondly, employees need to be aware that if they are subjected to discriminatory conduct by third parties present in the workplace, as the law currently stands, they may not be have a remedy against anyone for that conduct.
Safia Tharoo, Barrister, 42 Bedford Row, London