A common law approach to agency under section 109(2) of the Equality Act 2010

For discrimination lawyers, agency and principal considerations may arise when an alleged discriminator or harasser is not employed by the alleged victim’s employer (often referred to as third party harassment cases).  The alleged victim may argue that the discriminator or harasser is an agent acting on behalf of their employer. 

In Anderson v CAE Crewing Services Limited  [2024] EAT 78, the EAT (His Honour Judge Tayler) held that the employment tribunal, whilst correct to identify the need to apply common law principles when considering agency under section 109(2) of the Equality Act 2010 (“EqA”), applied the wrong common law principles.

Background

The Claimant was employed by the Respondent, who supplies cabin crew to airlines. Cabin crew members are required to hold a fit to fly certificate, which is obtained following an examination with an aeromedical examiner, known as an AME. In November 2018, the Claimant, who has bipolar disorder and a heart condition, notified the Respondent of a recent cardiac episode and was referred by the Respondent to see an AME to whom she disclosed her bipolar disorder. 

It was asserted by the Claimant that the AME incorrectly categorised bipolar as a delusional disorder and, based upon outdated views of mental health, referred her to a psychiatrist. The Claimant obtained a report from her GP and also from an alternative AME, both confirming her fitness to fly. The Respondent referred the Claimant to another AME who too decided that a psychiatric examination was required. 

The Claimant brought claims of direct disability discrimination, discrimination because of something arising from in consequence of disability and harassment. 

The employment tribunal dismissed the claim rejecting that the AMEs were agents for the purposes of s.109(2) EqA. The focus of the tribunal’s judgment was on whether the relationship between the AMEs and the Respondent was akin to an employment relationship, relying upon Various Claimants v Barclays Bank plc [2020] UKSC 12; [2020] AC 973. It found that the AMEs were independent contractors and therefore not agents.

The appeal

The Claimant appealed on the ground that although the tribunal identified that it was considering agency pursuant to s. 109(2) EqA, it in fact applied the wrong test. It was further argued that the matter should be remitted to a fresh tribunal as the tribunal had dismissed a substantial amount of the claims as a result of its findings regarding the AMEs and that there was a serious procedural irregularity in that key parts of the judgment was in draft form (which, it was argued, begged questions over when it was drafted and whether the lay members had read it). 

The EAT stressed there is no single definition of agency. As observed in Kemeh v Ministry of Defence [2014] EWCA Civ 91, [2014] IRLR 377, the editors of  Bowstead and Reynolds point out that “no-one has the correct use of this or any term”. The EAT identified the uncertainty as to whether the agent must have power to affect legal relationships (noting Elias J’s obiter comment in the EAT in Kemeh that such a power was not necessary by contrast to the earlier EAT decision of Yearwood v Commissioner of Police of the Metropolis [2004] ICR 1660). Although in Unite the Union v Nailard [2018] EWCA Civ 1203, Underhill LJ opined in favour of Kemeh (he was of the view that the approach is aligned with employee liability under (s.109(1) EqA), the EAT stressed that in Unite, the Court of Appeal was not considering whether agency existed and hence Underhill LJ’s comments were obiter. 

However the EAT held that one thing that is certain is that the agent must be acting on behalf of the principal. It was pointed out that the editors of Bowstead and Reynolds suggest that, “agency may best be seen, not as a status, but as a description of a person while exercising the authority conferred by the principal to act on the principal’s behalf”. Thus a person or corporation that is an independent contractor may be an agent while exercising the authority conferred by the principal to act on behalf of the principal. 

Having set out the common law principles regarding agency, all grounds of appeal were upheld. The EAT held that the concept of agency is indeed that of common law but it was wrong to apply Barclays, where the Supreme Court specifically disavowed consideration of agency. Instead the common law of agency should have been considered and applied (Kemeh). 

Disposal

The EAT observed that whilst a determination of the AMEs as independent contractors was highly relevant to an assessment of agency, it should not have been determinative of it. The question to be determined was whether the AMEs were acting on behalf of the Respondent pursuant to authority vested by the Respondent, as opposed to acting independently; the airline paying for the provision of that independent service. The EAT held that the case would be remitted as there was more than one possible answer which would turn on the specifics of the relationship and the statutory/regulatory context (which were subject to very limited findings by the tribunal).  As one guide to the assessment, the tribunal may wish to consider whether the AMEs are in reality company doctors or whether they are truly independent practitioners from whom an expert opinion is sought. 

The other grounds of appeal relating to reasoning were also successful and hence the EAT held it was appropriate to remit to a fresh tribunal. 

In relation to a second joint appeal, which concerned the Claimant’s alleged treatment when she returned to work following the subsequent issuing of a fit to fly certificate, the EAT upheld one ground in relation to inadequate reasoning and the matter was remitted to the same tribunal. 

Comment

The case highlights the difficulties that many practitioners and judges face grappling with the uncertain, complex and often unfamiliar common law principles of agency.  

Mukhtiar Singh

18 June 2024

Mukhtiar Singh represented the successful appellant in both appeals. Mukhtiar Singh practises in employment and commercial law with a particular focus on senior manager and executive cases involving whistleblowing; discrimination; and business and commercial ethics. He works predominantly in three regulated sectors: financial services, healthcare and the police.