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Discrimination: Liability for Agents

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Thanks to Paul Smith of Broadway House Chambers for preparing this case summary

In the field of discrimination, will an employee of an independent contractor be an agent of a third-party employer simply because they carry out work on behalf of the third party?

Ordinarily not, holds the Court of Appeal in Kemeh v Ministry of Defence.

The appellant was employed by the Army as a cook in the Falkland Islands garrison. The Ministry had contracted with a third party to provide facilities management services at the garrison; that third party had in turn sub-contracted with a fourth party for the provision of catering services. The appellant was subjected to two directly discriminatory remarks, one by his Ministry-employed line manager and another by a butcher employed by the fourth party. The Ministry accepted liability for the line manager's comment but denied it in respect of the butcher.

The Court of Appeal (Elias LJ giving the lead judgment) upheld the EAT's earlier decision to dismiss the claim in respect of the fourth-party employee, determining that it would not normally be appropriate to label such individuals as agents of the ultimate employer. To be accurately described as such they would require a degree of authorisation beyond the carrying out of work; there would need to be "very cogent evidence" showing that the tasks that person carried out as an employee were also being performed as an agent.

In relation to the comment made by the appellant's line manager, the employment tribunal had awarded £12,000 as compensation for injury to feelings. The EAT overturned that award as being manifestly excessive. Elias LJ agreed with the EAT on this point, reminding us that although each case will be fact-specific it would not normally be appropriate for one-off remarks to merit awards above the lower band of the Ventoguidelines.