Employment Law News

Employers’ liability for its agents in discrimination claims

In discrimination cases, employers are responsible for the actions of both employees and their agents. But who is an employer’s agent?

In Kemeh v MoD, the Court of Appeal held that the common law test applies when working out whether someone is an agent for the purposes of discrimination law. The question therefore is ‘Was there a fiduciary relationship which exists between two people where both expressly or impliedly consent for one to act on behalf of the other?’ This is likely to be a very limited group of people.

Mr Kemeh, a black man, worked as an army chef for the MoD, and brought a claim for race discrimination against the MoD based on two incidents:

• The MoD contracted out its catering to Serco who sub-contracted to Sodexho. Ms Ausher worked as a butcher for Sodexho. When Mr Kemeh ordered meat from Ms Ausher, he was asked ‘Why should I trust you…you are black.’
• Mr Kemeh was told by his manager, Sgt Simmons, to ‘Shut up you dumb black bastard’.

The Court of Appeal found that:

• Ms Ausher was not the MoD’s agent. There was no evidence that the MoD consented either expressly or impliedly to Sodexho or its employees acting as its agent; therefore the MoD were not liable for her discriminatory comment.
• The MoD accepted liability for Sgt Simmons comment and Mr Kemeh was awarded £6,000 for injury to feelings. This was reduced from an earlier award of £12,000 because it was held to be too high an award for a one off comment.

Going forward, whilst employers should make sure that anyone working under their control complies with their equality policies they should do so in a way which seeks to avoid an agency relationship.