Remploy Ltd v Campbell & Anor

For liability under section 32(2) of the Race Relations Act 1976, it is insufficient to find that an end user had implied consent to manage a supplied worker day to day. The tribunal must also decide whether the end user exercised the relevant authority on behalf of the alleged principal, including whether it acted for the principal’s benefit or as otherwise agreed.

Ratification requires a separate inquiry. The relevant third party must have perceived that the alleged agent purported to act in the principal’s name or on its behalf. Only then does it become necessary to decide whether the principal adopted the act. Failure to determine either issue is an error of law.

Remploy employed and placed Mr Campbell, a CCTV operator, with the London Borough of Redbridge. Redbridge managed his work and selected another operator for retention when funding reduced. The Employment Tribunal found that Redbridge had discriminated on racial grounds and that Remploy was jointly liable because Redbridge acted as its agent, alternatively because Remploy ratified Redbridge’s decision.

Remploy appealed only its liability for the discrimination. The central issue was whether the Tribunal had correctly determined implied authority or subsequent ratification under section 32(2) of the Race Relations Act 1976.

1. Appeal allowed and remitted. The Employment Tribunal’s conclusion at paragraph 138 was ambiguous. It was unclear whether it had found that Redbridge had implied prior authority from Remploy, or had instead treated Remploy’s later conduct as legal ratification.

2. The Tribunal was entitled to regard the decision which placements to retain or end as part of Redbridge’s day-to-day supervision of the supplied worker. That could support a finding of Remploy’s implied consent. Consent alone, however, did not answer the full agency question.

3. Under section 32(2) of the Race Relations Act 1976, the Tribunal also had to determine whether Redbridge exercised the authority on Remploy’s behalf. It had to address whether Redbridge was acting for Remploy’s benefit, or pursuant to some other agreed arrangement, when it selected the placements to end. The evidence showed an arrangement principally directed to Redbridge receiving staff for its own CCTV operation, but the EAT could not make the required factual determination itself.

4. The Tribunal also erred on ratification. Before considering whether Remploy adopted Redbridge’s decision, it had to decide whether Mr Campbell perceived Redbridge as purporting to act in Remploy’s name or on Remploy’s behalf. The manifestation need not originate solely from the alleged agent. The decisive question is the third party’s perception. The Tribunal had not made that finding.

5. The issue was remitted to the same Tribunal to determine implied authority and/or ratification on the correct legal basis, after any further evidence and submissions required.

• Employment Appeal Tribunal: Appeal allowed and the agency and ratification issue remitted to the same Employment Tribunal: [2013] UKEAT 0550_12_1911.
• Employment Tribunal, East London: Found that Redbridge had discriminated against Mr Campbell and that Remploy was jointly liable as principal for Redbridge’s act; it also found automatic and ordinary unfair dismissal. No citation is stated.