Ministry of Defence v Kemeh

For liability under section 32(2) of the Race Relations Act 1976, common-law principles of agency apply. A contractual supply chain and day-to-day operational control do not, without evidence of authority or consent capable of establishing agency, make a subcontractor or its employee the principal’s agent.

An appellate tribunal may interfere with an injury-to-feelings award only where it is manifestly excessive or a wholly erroneous estimate. A single discriminatory insult by a superior officer may justify an award at the top of the lower Vento band, but a middle-band award is wrong in principle where that band is appropriate for a course of discriminatory conduct.

The claimant, a black African private serving as a chef in the Falkland Islands garrison, brought a race-discrimination claim following separate racist remarks by a civilian butcher employed by a subcontractor and by his senior non-commissioned officer.

Liability was admitted before the Employment Tribunal. Its judgment of 20 January 2012 held that the butcher was the Ministry of Defence’s agent under section 32(2) of the Race Relations Act 1976, and awarded £3,500 for that incident. It also awarded £12,000 for injury to feelings arising from the superior officer’s remark.

The Ministry appealed the agency finding and the latter award. The central issues were whether the subcontractor’s employee was the Ministry’s agent at common law and whether the £12,000 award was excessive.

1. Appeal allowed. The Employment Tribunal applied the wrong test in deciding agency under section 32(2) of the Race Relations Act 1976. Consistent Employment Appeal Tribunal authority required the application of common-law agency principles.

2. There was no evidential basis for an agency relationship between the Ministry and the subcontractor or its employee. The subcontractor had contracted with Serco, not directly with the Ministry. Neither the services contract nor the military’s day-to-day control of civilian staff established that the Ministry had consented, expressly or impliedly, to the subcontractor or its employee acting with authority as its agent. The £3,500 award for the civilian employee’s remark was therefore set aside.

3. The Tribunal noted reservations arising from the purposive construction of section 32(1) in Jones v Tower Boot Co Ltd, and from the analysis in Bungay v Saini. Those matters could not displace the established EAT approach to section 32(2) in this appeal.

4. The £12,000 award for the superior officer’s single racist insult was manifestly excessive and wrong in principle. The officer’s superior rank materially distinguished the incident from the civilian employee’s remark. Nevertheless, a middle-band Vento award was appropriate for a course of discriminatory conduct, not this one-off incident. The proper award was £6,000, at the top of the lower band.

• Employment Appeal Tribunal: Allowed the Ministry’s appeal. It set aside the agency-based award and substituted £6,000 for the £12,000 injury-to-feelings award.
• Employment Tribunal: By a judgment with reasons dated 20 January 2012, found the civilian employee to be an agent under section 32(2) of the Race Relations Act 1976 and awarded £3,500; it awarded £12,000 for the superior officer’s remark.