Are you liable for racist comments by agency staff?
An agency worker made a racist comment towards an employee. But as you don’t employ them directly can you be penalised for their discriminatory remark? What does the Employment Appeal Tribunal have to say?
Home team tensions
The World Cup gets ardent football fans hot under the collar. It can cause employers problems too. The last one has just produced an employer-friendly ruling from the Employment Appeal Tribunal. So what happened in May & Baker (t/a Sanofi-Aventis Pharma) v Okerago 2010,and why did the case go in the employer’s favour?
The ladies are fighting
Ms Okerago (O) was employed by May & Baker (MB) as a pharmacy inspector. Ms Dower (D) was a member of agency staff supplied to it by Adecco. In July 2006, when the nation was in the grip of the last World Cup, the two women discussed which team they supported.
Tantrums. D asked O whether she would be supporting England or her own country in the forthcoming match. O said: “My country”, to which D replied: “Well, why don’t you f**k off back to your own country then!” O’s manager was aware of the exchange, but no further action was taken.
Incompetent and out
In 2007, O was dismissed due to alleged misconduct. She mounted claims of unfair dismissal and direct race discrimination against MB. She also claimed that she had raised a grievance following her “run-in” with D, but that it had not been “promptly and fully” investigated.
Initial finding. The tribunal found in O’s favour. It felt that under the Race Relations Act 1976 MB had “knowingly aided” D to act in a discriminatory way towards O and failed to prevent such behaviour. MB appealed to the EAT.
Helpful EAT decision
The EAT allowed its appeal and dismissed O’s claim on two grounds:
1. D was not a direct employee of MB. It could only be liable for her comments if she was both treated and acted as one.
2. Neither was she an agent of MB, i.e. instructed to act on its behalf.
Big factor. The EAT also said an employer can’t “knowingly aid” another to do something after an event has happened. Nothing MB had done after D made her offensive remark could amount to “aiding” her - the incident had already occurred.
A rare situation
This is an unusual case; tribunals will often seek to make employers responsible for the actions of staff. But the difference here is that D was an agency worker, i.e. not subject to MD’s policies.
Note. Had she been an employee, the EAT’s decision would have been different and MB may very well have been ordered to pay a significant amount of compensation to O.
Tip. Avoid potential problems like this by reminding all staff (including those from agencies) that they can support their own teams but within the confines of your equal opportunities and dignity at work policy. Illustrate what type of behaviour is unacceptable with examples, e.g. offensive jokes about particular ethnic groups.
For a free sample equal opportunities and dignity at work policy, visit http://personnel.indicator.co.uk(PS 12.13.03).
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