Mahood v Irish Centre Housing Ltd

Under discrimination legislation, an employer is liable for discriminatory acts by an agency worker only if the worker was its employee within the statutory definition or was acting as its agent. The common-law concept of a temporary employee does not create liability under the discrimination statutes merely because the end user controlled the worker’s work. Agency may arise where the worker exercised authority conferred by the employer to perform an act capable of being done lawfully or discriminatorily. If agency is established, the statutory defence requires proof of reasonably practicable preventive steps taken before the discriminatory act.

The claimant worked for the respondent housing association alongside Greg Toubkin, who had been supplied by an employment agency. The claimant alleged that Toubkin made racially and religiously derogatory remarks and behaved aggressively towards him.

The Employment Tribunal rejected the claim against the respondent, finding that reasonable steps had been taken because Toubkin was warned and his engagement was terminated shortly afterwards. It did not determine whether Toubkin was the respondent’s employee or agent, and it relied on post-incident conduct in applying the statutory defence. The appeal concerned the respondent’s potential vicarious liability for Toubkin’s alleged discrimination.

1. Appeal allowed in part and remitted. The Employment Tribunal’s reasoning was inadequate because it failed to determine whether Toubkin was an employee or agent of the respondent and misdirected itself on the statutory defence.
2. Section 32 of the Race Relations Act 1976, and the corresponding provisions of the Employment Equality (Religion or Belief) Regulations 2003, impose liability only for acts of an employee or agent. They do not create liability for acts of an unidentified third party.
3. The extended statutory definition of employment does not incorporate the common-law temporary-worker concept used in tort. Even if the respondent exercised sufficient control to be liable in tort for Toubkin’s acts, that would not establish liability under discrimination legislation. The evidence known to the Tribunal did not establish that Toubkin was the respondent’s employee.
4. Agency must be given a purposive construction. A worker may be an agent where, when performing the discriminatory act, he exercised authority conferred by the respondent to do an act capable of being performed either lawfully or discriminatorily. Whether that requirement is met depends on the worker’s authority and the act proved.
5. The case was remitted to the same Employment Tribunal, on the evidence already before it, to decide whether Toubkin acted as the respondent’s agent. A complete rehearing and fresh evidence were not permitted.
6. If agency were established, the respondent would then have to prove that, before the matters complained of, it had taken such steps as were reasonably practicable to prevent the act or acts of that description. Warning Toubkin and terminating his engagement after the alleged conduct could not, without more, establish that defence.

• Employment Tribunal, Watford: upheld a victimisation complaint and dismissed the discrimination claim against the respondent based on Toubkin’s conduct.
• Employment Appeal Tribunal: remitted the vicarious-liability issue to the same Employment Tribunal for reconsideration on the existing evidence.