Employer not Liable for Agency Worker’s Remarks

A recent case (May and Baker Ltd. t/a Sanofi-Aventis Pharma v Okerago) serves as a reminder to employers of the sort of problems that can arise during an international sporting event when members of their workforce support different participants.

Mrs Okerago claimed that remarks made to her by a colleague, Ms Dower, during the 2006 FIFA World Cup amounted to direct discrimination under the Race Relations Act 1976 (RRA). Mrs Okerago told the Employment Tribunal (ET) that Ms Dower, an agency worker, told her to 'go back home' after Mrs Okerago replied 'my country' when asked which team she would be supporting in the competition. By not specifically investigating her grievance on this issue, she claimed that her employer had aided and abetted the discrimination.

The ET judged May and Baker liable for Ms Dower’s discriminatory remarks but this decision was overturned on appeal.

The Employment Appeal Tribunal (EAT) found that there were no adequate findings of fact in the ET’s judgment to support the ruling that Ms Dower was an employee of May and Baker, which was necessary for a finding of liability under Section 32(1) of the RRA. The ET's finding that 'to all intents and purposes she was treated as an employee on a day-to-day basis and acted as one' was not a sufficient basis for finding the company liable.

In addition, the EAT ruled that there were no adequate findings of fact to support a conclusion that Ms Dower acted as an agent of May and Baker, for the purposes of RRA Section 32(2). Also, a person cannot aid another to do something that the other person has already done. The failure to investigate Mrs Okerago's grievance and the other matters referred to by the ET all took place after the World Cup incident had already occurred and there were no findings that the company knew about Ms Dower's remark at that time to support the suggestion that it had assisted the incident to occur.

The EAT went on to say that although the ET found that by its conduct May and Baker was 'compliant in allowing an environment to continue where such conduct could take place', there were no findings by the ET that the company had allowed such an environment to exist prior to, or at the time of, the World Cup incident.

This case hinged on the fact that the complaint concerned the conduct of an agency worker, not an employee. The claimant's case was not advanced on the basis that her employer was vicariously liable for the agency worker's actions. The ET made no findings of fact on that point and it was not therefore open to Mrs Okerago to argue it in the EAT.

Contact Eoin Fowell on 01752 292350 or James Twine on 01752 292351 for advice on any employment law matter.