Kemeh v Ministry of Defence

Liability for an agent’s discrimination under section 32(2) of the Race Relations Act 1976 requires an agency relationship which reflects the essence of the legal concept. The alleged agent must act on the principal’s behalf and with its authority. Performing work which benefits an end user, even with some integration or direction, does not itself create agency.

Compensation for injury to feelings remains flexible within the established bands, but must compensate rather than punish. A tribunal must preserve consistency with comparable awards. An appellate tribunal may intervene where an award is manifestly excessive or wrong in principle.

A black British Army cook suffered two admitted acts of direct racial discrimination while stationed in the Falkland Islands. A butcher employed by a subcontractor made the first remark. A superior officer employed by the Ministry of Defence made the second.

The Employment Tribunal held the Ministry liable for both incidents under the Race Relations Act 1976. It treated the subcontractor’s employee as the Ministry’s agent under section 32(2) and awarded £12,000 for injury to feelings arising from the superior officer’s remark.

The Employment Appeal Tribunal set aside the agency finding and reduced the award to £6,000. The appeal raised whether statutory agency extended beyond the essential legal concept of agency and whether the reduced award was justified.

1. The appeal was dismissed unanimously. The Ministry of Defence was not liable under section 32(2) of the Race Relations Act 1976 for the discriminatory act of the subcontractor’s employee. The Employment Appeal Tribunal was also entitled to substitute £6,000 for the Employment Tribunal’s £12,000 injury-to-feelings award.

2. Section 32(2) does not require the principal to authorise the discrimination itself. Liability arises where an agent discriminates while carrying out functions which the principal authorised. The omission from section 32(2) of the express reference to knowledge or approval found in section 32(1) did not justify a contrary construction.

3. The statutory expression “agent” must at least reflect the essence of the legal concept. The person must act on the principal’s behalf and with the principal’s authority. The broader proposed test based on direction, integration and proximity rewrote the provision and failed to address authority.

4. A contractor’s employee does not become the end user’s agent merely because the work benefits the end user or is subject to some operational control. Employment by one person does not invariably prevent agency for another, even concerning the same transaction. Cogent evidence is, however, required where the employee’s existing duties are alleged also to be performed as another person’s agent. No such evidence existed here.

5. A purposive construction gives effect to Parliament’s intention as expressed through the statutory language and context. It may prefer the construction which better advances the statutory purpose where two meanings are genuinely available. It cannot enlarge a statutory concept beyond its legitimate reach merely to fill a gap in protection. The approach in Bedfordshire Police v Liversidge [2002] ICR 1135 was applied.

6. The bands identified in Vento v Chief Constable of West Yorkshire Police [2003] ICR 318 are flexible, but promote consistency and fairness. Compensation addresses genuine injury to feelings and does not punish poor management. The single offensive remark, despite aggravating features, did not justify a middle-band award. The Employment Appeal Tribunal had properly placed £6,000 at the top of the lower band.

1. Court of Appeal (Civil Division): Dismissed the employee’s appeal and affirmed the Employment Appeal Tribunal’s disposition on both agency liability and compensation: [2014] EWCA Civ 91.

2. Employment Appeal Tribunal: Allowed the Ministry’s appeal from the agency finding, holding that there was no evidence that the subcontractor or its employee was the Ministry’s agent. It also reduced compensation for injury to feelings from £12,000 to £6,000: UKEAT/0249/12/SM.

3. Employment Tribunal: Held the Ministry liable for both discriminatory acts and awarded £12,000 for injury to feelings arising from the superior officer’s remark.