Liability for an Agent's behaviour

The recent case of Kemeh v Ministry of Defence ET/3104095/10 reminds employers that they can be liable for discriminatory acts committed not only by their employees, but also by their agents.

Mr Kemeh worked for the Ministry of Defence at its catering facility in the Falkland Islands.

Ms Ausher was employed by Sodexo, a food services and facilities management company, and also worked at the facility.  The MoD had a contractual relationship with another company, Serco Limited, who had sub-contracted the work on the facility to Sodexo.

Mr Kemeh approached Ms Ausher (a civilian butcher employed by Sodexo) in the meat store.  Mr Kemeh asked her for some chicken, and she provided him with just two pieces.  He said to her: "Trust me. I am making soup for 1,000 people.  Give me more than that.”  Ms Ausher replied:  "Why should I trust you? First of all you are a Private in the British Army and then you are black.”

Mr Kemeh subsequently claimed race discrimination against the MoD.

The MoD, whilst conceding that Ms Ausher had used racially discriminatory language towards Mr Kemeh, argued that it was not liable for her actions as she was employed by Sodexo.

The Employment Tribunal concluded that, on a day-to-day basis, Ms Ausher received instructions from MoD personnel working in the catering facility and, as such, was under their control.  As a result, the Tribunal held that Ms Ausher was an agent of the MoD for the purposes of the discrimination claim and so the MoD was responsible for her unlawful conduct.

This case illustrates how important it is for all employers to make sure that anyone working under their control complies with their equality and diversity policies and does not commit any act of discrimination.