Discrimination & Vicarious Liability – Third Party

The concept of vicarious liability, particularly in relation to a third party is one that can cause considerable concern to that of an employer. In the case of Kemeh v Ministry of Defence, the Court of Appeal (CA) had to consider whether or not the employer was vicariously liable for the discriminatory acts of an agency worker working at the premises of the employer.

Background

Kemeh was a cook working for the British Army. The agent was an employee of Sedexo, a sub-contractor of Serco who had a commercial contract with the Ministry of Defense. Kemeh asked a civilian employee of Sedexo, for some ingredients to make a soup. The Sedexo employee who was working as a butcher replied,
“Why should I trust you? First you are a private in the British Army and then you are black”.

This was accepted by the Ministry of Defence as an act of direct racial discrimination, however they did not accept liability for the abusive comment. The Ministry of Defence argued that they were not liable because the civilian was not employed by the MoD, and that they worked for a sub-contractor which provided services to the MoD and could therefore not constitute an agent of the MoD.

Conclusions

The tribunal decided that as the sub-contractor was carrying out functions would could be considered as providing benefit for the employer, by carrying out functions that the MoD could actually carry out for themselves, then this constituted an agency relationship with the agent acting on the employer’s behalf.
The EAT took a different view, arguing that the civilian butcher had not been acting as an agent for the MoD, but as an employee of Sodexo who was a sub-contractor of Serco.
Kemeh then appealed and the CA confirmed that the employer was not vicariously liable, however it is important to note that had the agent indeed been another employee, then it is likely that the employer would have in fact been found to be vicariously liable.
The CA concluded that unless the act of discrimination was done with the authority of the employer, then the employer is not liable for actions of the agency worker. The common law test applied between principal and agent is whether or not the agent was ‘acting within the scope of his or her authority,’ and not whether or not the employer has expressly authorised the act.

Additional Points to Consider

This case raises the point that  the employees of an end user, cannot be liable for direct discrimination by a contract worker against one of the end users employees.
Further, it is interesting to note that remedy for one-off incidents of oral abuse  should only reach compensation for  injury to feelings of up to a maximum of £6000. This was confirmed by the CA in this case. It is important to note that this  does not include one-off incidents of oral abuse that result in loss of job opportunity or dismissal.) Discrimination claims can still command uncapped compensation.

Whilst every effort has been made to maintain accuracy throughout this article, Nationwide Employment Lawyers cannot accept responsibility or liability for any errors. This article is intended for guidance purposes  only and does not constitute specialist legal advice. Nationwide Employment Lawyers accept no responsibility or liability whatsoever for any action taken or not taken in relation to this article and recommend that appropriate legal advice be taken in all circumstances.