May & Baker Ltd (t/a Sanofi-Aventis Pharma) v Okerago

Liability for discrimination by an agency worker cannot be imposed on the end-user merely because the worker was treated like an employee in day-to-day operations. The tribunal must make findings establishing the statutory basis of liability.

Under sections 32 and 33 of the Race Relations Act 1976, the tribunal must distinguish employment, agency and aiding liability. Aiding requires assistance before or at the time of the unlawful act, together with knowledge of that act. Post-event failures to investigate cannot constitute aiding an act already committed.

The claimant was employed by the appellant pharmaceutical company and alleged that an agency inspector, Terri Dower, had made a racially abusive World Cup-related remark. The Employment Tribunal found direct race discrimination and imposed liability on the appellant under sections 32 and 33 of the Race Relations Act 1976.

The Tribunal did not determine whether Dower was an employee or agent, whether the appellant had aided her conduct, or whether the conduct was itself unlawful as against Dower. The appeal concerned only the finding of direct discrimination arising from that incident.

1. Appeal allowed. The Tribunal’s finding of direct discrimination and the associated compensation award were set aside. The allegation was dismissed, and the interest award was adjusted.
2. Liability under section 32(1) required findings addressing whether Dower had a contract of service, apprenticeship, or a contract personally to execute work or labour within section 78(1) of the Race Relations Act 1976. Treating her as an employee for day-to-day purposes was insufficient, particularly without findings of primary fact or contractual documentation.
3. Section 32(2) required consideration of the concept of agency and adequate findings that Dower acted as the appellant’s agent. The Tribunal made no such findings and did not apply that provision.
4. Section 33 required proof that another person had done an unlawful act, that the appellant had aided that person to do it, and that the appellant had done so knowingly. A person cannot aid an act which has already occurred. The Tribunal relied only on post-incident failures to investigate and on allowing an environment in which such conduct could occur. Those matters did not establish cooperation or collaboration before or during the incident.
5. The Tribunal also failed to establish the necessary knowledge. Further, the alleged act was not unlawful by Dower herself under section 4(2)(c), because the claimant was not employed by Dower.
6. The suggested principle of liability based on control over third-party conduct derived from Burton v De Vere Hotels [1997] ICR 1 had been expressly disapproved in Pearce v Governing Body of Mayfield Secondary School [2003] ICR 937. A separate common-law vicarious-liability case was not properly open on the evidence or pleadings.

• Employment Tribunal: The Tribunal sitting at Stratford in November and December 2008 found the World Cup incident to constitute direct race discrimination and imposed liability on the appellant.
• Employment Appeal Tribunal: The appeal was allowed. The finding of direct discrimination was dismissed, the £2,500 compensation award was set aside, and the interest award was adjusted to £107.25.