Jessica Anderson v CAE Crewing Services Limited

For liability under section 109(2) of the Equality Act 2010, agency and vicarious liability are distinct questions. A person may act as an agent while being an independent contractor. The decisive inquiry is whether that person acted on the principal’s behalf under the principal’s authority. The authority need not include power to alter the principal’s legal relations with third parties.

An Employment Tribunal must make sufficient findings about the contractual, statutory and regulatory setting before resolving that issue. In a section 15 claim based on disability-related absence, it must determine whether each relevant absence arose in consequence of disability and, if so, whether the resulting treatment was a proportionate means of achieving a legitimate aim.

The claimant, a cabin-crew worker with bipolar disorder and a heart condition, brought disability discrimination and harassment complaints. Her first appeal concerned medical examiners who assessed her fitness to fly. The Employment Tribunal held that they were independent contractors and therefore not agents of the respondent.

Her second appeal concerned findings that several later complaints were out of time and the rejection of complaints relating to disciplinary proceedings and a final written warning. The central issues were whether the Tribunal had applied the correct test of agency under section 109 of the Equality Act 2010, and whether its reasons on the substantive discrimination complaints were adequate.

1. Appeal 1 was allowed. The Employment Tribunal had asked whether the medical examiners were agents, but answered that question by applying the distinct common-law test for vicarious liability where a relationship is akin to employment. Its conclusion that the doctors were independent contractors did not necessarily answer the statutory agency question.

2. Under section 109(2) of the Equality Act 2010, the relevant inquiry was whether the doctors acted on the respondent’s behalf with its authority. Agency requires action on behalf of the principal and authority to do so. It does not necessarily require authority to affect the principal’s legal relations with third parties. An independent contractor may nevertheless be an agent while exercising authority conferred by a principal.

3. The existing findings did not permit the EAT to conclude that agency was impossible. The Tribunal had made limited findings on the arrangements between the respondent and the doctors, and had given little consideration to the statutory and regulatory context. The whole of the first claim was remitted for rehearing before a differently constituted Tribunal. The alternative discrimination reasoning was unsafe because material passages remained in draft form and did not reach conclusions.

4. Appeal 2 was allowed in part. The Tribunal did not err in refusing to treat the asserted out-of-time acts as conduct extending over a period. The allegations concerned different forms of disability discrimination, different individuals, and chiefly the claimant’s heart condition; there was no basis to infer a common course linked to knowledge of her bipolar disorder.

5. However, the Tribunal’s reasoning on the section 15 complaints concerning commencement of disciplinary proceedings and the final written warning was insufficient. It had to decide, for each absence relied upon, whether it arose in consequence of disability and, if so, whether the treatment was a proportionate means of achieving a legitimate aim. Those limited complaints were remitted to the same Tribunal.

• Employment Appeal Tribunal: Appeal 1 allowed. The judgment of the London South Employment Tribunal, sent to the parties on 1 June 2021, was set aside and the claim remitted to a newly constituted Tribunal.
• Employment Appeal Tribunal: Appeal 2 allowed in part. The judgment of the Employment Tribunal, sent to the parties on 16 June 2022, was upheld on limitation and most other grounds. The section 15 complaints concerning disciplinary proceedings and a final written warning were remitted to the same Tribunal.