EAT considers employer's liability for discriminatory actions of agency worker

Mahood v Irish Centre Housing Ltd EAT/0228/10

race and religious discrimination | discriminatory acts by agency workers

The Employment Appeal Tribunal (EAT) has considered employers' liability for discriminatory acts committed by agency workers. 

Mr Mahood is of Irish national origin and a Protestant by religion. He was recruited to a temporary position as a project worker for Irish Centre Housing Ltd and later moved to the position of temporary hostel support worker. His appointment was subject to references and a criminal records check. 

Irish Centre Housing Ltd had a staff shortage and took on Mr Toubkin as a temporary worker through an employment agency, Synergy Group. Mr Mahood and Mr Toubkin did not get on. Mr Mahood complained that Mr Toubkin had:

• made derogatory remarks about Protestants;
• mimicked his accent; and
• interrupted his conversations and made aggressive comments towards him. 

Mr Mahood considered Mr Toubkin's behaviour to be "aggressive and intimidating" and said that the treatment lasted between three and four weeks. Mr Mahood raised a grievance and Mr Toubkin was warned that his behaviour was unacceptable and that Synergy Group would be informed. 

The next day, an altercation took place while both men were engaged in front-of-house duties. The manager decided that Mr Mahood should go home until the dispute was resolved. Mr Toubkin's engagement was terminated, but Mr Mahood was also let go a short time later, because of problems with obtaining a criminal record check for him. 

Mr Mahood brought race and religion or belief discrimination claims under the Race Relations Act 1976 (RRA) and Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660), which have now been replaced by the Equality Act 2010. The employment tribunal upheld a complaint of victimisation for the employer's decision to send Mr Mahood home when he raised the grievance about Mr Toubkin. However, it dismissed the claims that the employer was liable for Mr Toubkin's actions. 

When Mr Mahood appealed in relation to the employer's liability for Mr Toubkin's actions, the EAT was hampered by confusion over the basis for the employment tribunal's decision. The EAT noted that the tribunal had not made clear the basis under which employers' liability exists in respect of employees and agents under s.32 of the RRA and reg.22 of the Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660) (now s.109 of the Equality Act 2010). The EAT also criticised the tribunal for not considering the evidence as to the nature of Mr Toubkin's contractual relations (if any) between him, the end user and the agency. The EAT assumed that Synergy Group must have had some contractual relationship with Mr Toubkin and that it had given him a typical placement as an agency worker, under which he was under no contractual obligation to accept work from Synergy Group and it was not obliged to offer him work. 

The EAT said that, if the employment tribunal is considering whether or not an employer is liable for acts of discrimination by an agency worker, it needs to give a careful explanation of the facts that it has found giving rise to the conclusion that the person in question was acting either as an employee or agent of the employer within the meaning of discrimination legislation. In other words, the employment tribunal would have to show that the agency worker had:

• become an employee as defined in James v London Borough of Greenwich [2008] IRLR 302 CA; or
• acted as the employer's agent in the sense that, when doing a discriminatory act, he or she was exercising authority conferred by the employer. 

Employment tribunals can then go on to consider whether or not the employer has the statutory defence that it took reasonably practicable steps to prevent the employee or agent from doing that act. 

The EAT remitted the case to the same employment tribunal to reconsider it on this basis. 

Additional resources

• Employer not liable for third-party racial harassment under RRA The EAT held that the employment tribunal was correct to reject a claim of race discrimination under the RRA against an employer that failed to take action to prevent third-party harassment. 
• Line manager briefing on bullying and harassment This line manager briefing covers the topic of bullying and harassment and aims to provide guidance on what managers should do to reduce the likelihood of incidents of bullying and harassment at work.  
• Harassment and the Equality Act 2010: overview Sarah-Marie Williams and Alice Sweet of Clyde & Co LLP begin a series of articles on the impact of the Equality Act 2010 on the law relating to harassment, with an overview that looks at how the Equality Act 2010 widens the definition of unlawful harassment and extends liability on employers for harassment by a third party, which is currently limited to sexual harassment, to other discrimination strands. 

Case transcript of Mahood v Irish Centre Housing Ltd (on the BAILII website)