Mr Kemeh v Ministry of Defence
| Jurisdiction | England & Wales |
| Judge | Lord Justice Elias,Lord Justice Lewison,Lord Justice Kitchin |
| Judgment Date | 11 February 2014 |
| Neutral Citation | [2014] EWCA Civ 91 |
| Date | 11 February 2014 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2013/0886/EATRF |
[2014] EWCA Civ 91
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM the EMPLOYMENT APPEAL TRIBUNAL
HIS HONOUR JUDGE PETER CLARK
UKEAT/0249/12/SM
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Elias
Lord Justice Lewison
and
Lord Justice Kitchin
Case No: A2/2013/0886/EATRF
Ms Daphne Romney QC and Ms Schona Jolly (instructed by Islington Law Centre) for the Appellant
Mr Matthew Purchase (instructed by The Treasury Solicitor) for the Respondent
The facts
This appeal raises two quite distinct issues arising out of two separate acts of racial discrimination. Each involved a racially offensive comment.
The background can be shortly stated. The appellant is black and was born in Ghana. He joined the British Army as a cook in November 2004 and became a British National in 2009. In June 2010 he was stationed in the Falklands where he was subjected to two episodes of race discrimination.
In the first, he was racially abused by Ms Ausher who was a civilian employed by Sodexo as a butcher. Both she and the appellant were working in the Four Seasons Mess, the main catering facility for the Falklands Garrison. Sodexo was a sub-contractor of Serco, which in turn had entered into a commercial contract with the MoD to provide facilities management services in the South Atlantic. That contract provided that those working in the butchery would provide assistance to the NCO in charge of the butchery and carry out such tasks as directed by that officer.
The appellant asked Ms Ausher for some chicken pieces to make fresh soup for a large number of soldiers. She gave him just two pieces and when he asked for more she replied, "Why should I trust you? First you are a Private in the British Army and then you are black". The appellant was upset; the implication of the comment was that because he was black he was not to be trusted.
In the second incident, a week later, the appellant was told to "shut up you dumb black bastard" by his immediate line manager, Sergeant Simmons, a senior NCO, during the course of a conversation about a football match. The appellant complained and the incident was dealt with informally by Captain Lindsay with the agreement of the appellant. It led to Sergeant Simmons apologising to the appellant and promising that there would be no repetition of such conduct. The appellant at the time accepted this as appropriate redress. Later the case was taken up by the Equality and Diversity Advisor for the Falklands, Flight Lieutenant Hamilton. The appellant confirmed to her that he did not wish to take the complaint further, although he told the Tribunal that in fact it was always his intention to pursue the matter on his return to the UK.
This is what he did. On his return the appellant commenced proceedings in the Employment Tribunal against the MoD on the grounds that they were liable for these two discriminatory acts under the Race Relations Act 1976 ("the 1976 Act"). (The Equality Act 2010, which repealed the 1976 Act, was not in force at the material time. In any event, the material provisions in the new Act are almost identical to those in the 1976 Act.) The Employment Tribunal heard the two cases together. It was accepted that the abusive comments were made and that they constituted acts of direct racial discrimination.
The claims were brought under section 4 of the Act which renders it unlawful for "a person … in the case of a person employed by him … to discriminate against that employee … by subjecting him to a detriment." Legally, there was a potentially relevant difference between the two cases. Sergeant Simmons was in the employment of the MoD because military personnel in Crown Service were expressly treated as being in employment by section 75 of the Act. Ms Ausher, however, was not. The MoD accepted before the Employment Tribunal that it was liable for the discriminatory act of the sergeant by virtue of section 32(1) of the Act; the only point now in issue on that aspect of the case is whether the Tribunal award of £12,000 for injury to feelings was too high, as the EAT subsequently found. However, the MoD denied any liability for the act of Ms Ausher since she was not in its employment. The appellant submitted that it was liable nonetheless on the grounds that Ms Ausher was an agent carrying out tasks for the MoD, and the MoD was therefore liable for her discriminatory act as the principal pursuant to section 32(2) of the 1976 Act. The Employment Tribunal accepted this submission but its decision was overturned on appeal by the EAT (HH Judge Peter Clark presiding). The appellant seeks to restore the original decision.
Since the two issues are entirely discrete, I will consider them separately.
The agency issue
Section 32 of the 1976 Act in certain circumstances fixes liability on persons other than, and in addition to, the actual discriminator. It is as follows:
"Liability of employers and principals
(1) Anything done by a person in the course of his employment shall be treated for the purposes of this Act as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval.
(2) Anything done by a person as agent for another person with the authority (whether express or implied, and whether precedent or subsequent) of that other person shall be treated for the purposes of this Act as done by that other person as well as by him.
(3) In proceedings brought under this Act against any person in respect of an act alleged to have been done by an employee of his it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment acts of that description."
Subsection (1) applies a principle whose effect is similar to the common law concept of vicarious liability; in each case the employer is held liable for the acts of a person in his employment. But the method of imposing liability is different, as Peter Gibson LJ pointed out in Bedfordshire Police v Liversidge [2002] ICR 1135, 1143. True vicarious liability makes the employer liable for the acts of his employees committed in the course of their employment. By contrast, section 32(1) imposes a form of constructive liability by deeming the employer himself to have committed the act of discrimination as well as the employed person. (Indeed the actual discriminator is treated as aiding the wrong of the employer or principal, as the case may be, and is personally liable accordingly: see section 33(1) and (2).)
Read literally, subsection (2) might suggest that the principal must authorise the act of discrimination itself before liability arises. But I agree with the EAT in Lana v Positive Action in Training (Housing) Limited [2001] IRLR 501 para 32 (Mr Recorder Langstaff presiding) that this would virtually render the provision a dead letter. In my judgment, Parliament must have intended that the principal will be liable wherever the agent discriminates in the course of carrying out the functions he is authorised to do. It is a moot point whether the common law would in any event impose liability in these circumstances. The scope of the principal's liability for an agent at common law is not entirely clear, although it seems likely that he will be liable for certain tortious acts of the agent, such as misrepresentations, provided they are sufficiently closely related to the agent's actual or apparent authority: see Bowstead and Reynolds on Agency, 19 th edition, para 8–182. Whether racial abuse would fall within that principle is problematic, but section 32(2) removes the uncertainty which might otherwise exist.
If that analysis is right and the principal can be liable even though he has not authorised the act of discrimination itself, it follows that the act itself may be — and no doubt usually will be — without the principal's knowledge or approval. It is perhaps surprising that the draftsman did not make this plain in sub-section (2) as he did in subsection (1). It might be argued that the omission indicates a conscious decision by Parliament that in the case of a principal he should only be liable if he knows or approves of the discriminatory act itself, but I am not persuaded that this is a legitimate inference to draw from the difference in wording of the two subsections. Indeed, in the Equality Act 2010 section 109(3) expressly states that the principal will be liable irrespective of whether he knew or approved of the act of discrimination.
It is to be noted that whilst there is a defence in subsection (3) for liability arising by virtue of the acts of those in employment, it does not apply to the liability of a principal for his agent.
The decision of the Employment Tribunal
The issue in relation to the remark of Ms Ausher was whether she was properly to be treated as an agent of the MoD. The Employment Tribunal referred to the fact that neither side was able to point to any relevant authority on section 32 (2). The Tribunal was referred to a passage in Halsbury's Laws of England dealing with the concept of agency but it considered that:
"… common law principles concerning agency are not necessarily applicable when dealing with the statutory provisions relating to discrimination."
It later briefly summarised its reasons for concluding that an agency relationship arose in this case. First, the Tribunal explained the concept of agency it was applying in the following way (para 32):
"It seemed...
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