Tribunal applied wrong test to determine agency liability in disability discrimination claim
The Employment Appeal Tribunal (EAT) has found that a Tribunal applied an incorrect analysis in order to determine whether an employer was responsible for the acts of an independent contractor. The claim has been remitted to a new Tribunal.
Liability of principals for agents
The Equality Act 2010 provides for principals to be liable for discriminatory acts committed by agents who are acting under the principal's authority. It does not matter whether the agent's act was done with the principal's approval, and it is not necessary for there to be an employment relationship between the parties for liability to be established.
Background
In the case of Anderson v CAE Crewing Services Ltd, the claimant was a member of cabin crew. She was required to hold a "fit to fly certificate" (FTFC) which would be issued following a medical assessment carried out by an aviation medical examiner. The medical examiner was an independent contractor and not an employee of the respondent.
The claimant has bipolar disorder and a heart condition. After three medical examiners were consulted, the decision was taken to refer her for a psychiatric examination. The claimant brought a claim for disability discrimination, citing the conduct of two of the three examiners. The claimant accepted that the examiners were not employees of the respondent but argued that they were acting as its agents, meaning that the respondent was liable for their actions.
The Tribunal dismissed the claim on the basis that the medical examiners were independent contractors that had been specifically engaged to provide a service (i.e. the medical assessment). The respondent appealed to the EAT.
EAT decision
The EAT has allowed the claimant's appeal and has remitted the claim to a new Tribunal. The Tribunal had approached the issue by asking itself whether there was a relationship akin to employment between the respondent and the medical examiners, such that the respondent would be vicariously liable for their actions. This was the incorrect approach, as it is not necessary for there to be an employment relationship, or a relationship akin to employment, to establish liability as a principal for the actions of an agent.
The correct approach would have been to consider whether the examiners were acting as agents, and if so whether they had the authority of the respondent. The fact that the medical examiners were independent contractors did not preclude an agency relationship.
Learning points
This EAT decision demonstrates that medical examiners (such as occupational health advisers) can potentially be agents for a principal employer under the Equality Act. Whether an agency relationship will be established in any particular case will depend on the reality of the relationship between the employer and the potential agent, including what contractual arrangements are in place.