Kemeh v Ministry of Defence ET/3104095/10
Date added: 16 February 2012
race discrimination | liability for agents
In this case, an employer was held to be legally responsible for the discriminatory actions of another company's employee, who was found to be an agent of the employer under the Race Relations Act 1976. Under that Act (and the Equality Act 2010, which replaced it), an employer is liable for the conduct of another party where that party is acting as an agent under the employer's authority.
Practical tips
Although this case was decided under the now-repealed Race Relations Act 1976, s.109(2) of the Equality Act 2010 provides that employers are legally responsible for the discriminatory actions of agents under their authority.
Employers that have third parties operating in their workplaces should ensure that those third parties are aware of the expected standards of behaviour. |
Mr Kemeh is African and a serving member of the British army. He is a chef and, between 30 May and 7 August 2010, was posted in the Falkland Islands, where he worked in the main catering facility. Around 20 catering staff worked in the facility, which was owned and run by the Ministry of Defence (MoD). These included not only staff from the army and Royal Air Force, but also civilians from Sodexo, a multinational food services and facilities management company. The MoD did not have a contractual relationship with Sodexo, but with Serco Ltd. The tribunal later found that Serco had, presumably, subcontracted part of its facilities management services for the MoD to Sodexo.
On or around 15 June 2010, Mr Kemeh, in the course of his duties, approached Ms Ausher, in the meat store. She was a civilian butcher employed by Sodexo. Mr Kemeh asked her for some chicken, and she provided him with just two pieces. He said to her: “Trust me. I am making soup for 1,000 people. Give me more than that.” Ms Ausher replied: “Why should I trust you? First of all you are a private in the British army and then you are black.” Mr Kemeh was upset at this comment, with its implication that, because he is black, he was dishonest and not to be trusted with a substantial quantity of chicken.
On or around 23 June 2010, when the World Cup was taking place, an incident took place in the catering facility. There was a conversation about a football match, and Mr Kemeh made a comment to Sergeant Simmons (a senior non-commissioned officer) about a goal that had been scored. Sergeant Simmons shouted at Mr Kemeh: “Shut up, you dumb black bastard.”
Mr Kemeh made a formal complaint about Sergeant Simmons’ comment, which was dealt with by Captain Lindsay, who obtained Mr Kemeh’s version of events and asked him whether he wished the matter to be dealt with informally or formally. The latter, he said, would take “considerably longer”. Mr Kemeh was due to return to the UK in a matter of days, and later gave evidence that he felt constrained to agree to the matter being handled informally, as he did not wish to “rock the boat” in a military location operating in an isolated environment.
Captain Lindsay spoke to Sergeant Simmons to obtain his version of the incident. Sergeant Simmons agreed that he had, “in jest”, made a comment that referred to Mr Kemeh's race. Although he said that he had not intended to offend Mr Kemeh, he had done so and would be happy to apologise. The tribunal later found that it was not clear whether or not Sergeant Simmons was referring to the same incident as the one that Mr Kemeh had complained about, but Captain Lindsay did not investigate this point. Captain Lindsay called both Mr Kemeh and Sergeant Simmons into a room. Sergeant Simmons apologised for his actions, although Mr Kemeh later gave evidence that he did not appear to be taking the matter as seriously as Mr Kemeh felt he should. Both parties signed a one-page document that recorded the apology.
Mr Kemeh also complained about Ms Ausher’s conduct, apparently to Sodexo, which investigated the matter and met with him to discuss it. Mr Kemeh indicated that he was content not to pursue the matter further, given that he was returning to the UK shortly, and Sodexo took no further action.
In early November 2010, after Mr Kemeh returned to the UK, he submitted a complaint to his commanding officer. The commanding officer concluded that Sergeant Simmons did use the words alleged by Mr Kemeh and that they amounted to bullying and/or racial harassment. He also concluded that Captain Lindsay had not investigated the allegations properly or taken appropriate action as a result of the complaint. He determined that consideration should be given to “administrative action” against both Sergeant Simmons and Captain Lindsay. Mr Kemeh claimed race discrimination against the MoD.
The MoD conceded that Ms Ausher and Sergeant Simmons had used racially discriminatory words towards Mr Kemeh. It acknowledged that the racially abusive comments were “totally unacceptable” and wished to “express its sincere regret that the incidents had occurred”. The MoD accepted vicarious liability for Sergeant Simmons’ discriminatory conduct. As a result, the tribunal had only to decide, in respect of his conduct, how much compensation should be awarded to Mr Kemeh for injury to feelings.
However, the MoD argued that it was not legally responsible for Ms Ausher’s discriminatory conduct: she was not employed by it, but by Sodexo. Mr Kemeh argued that, under s.32(2) of the Race Relations Act 1976 (now replaced by the Equality Act 2010), the MoD was liable for her actions as an agent for the MoD, working under its authority.
The contract between the MoD and Serco provided that those engaged in the “freezer/butchery” would provide assistance to the non-commissioned officer in charge and “carry out any other task as directed by” the officer. The tribunal also heard evidence that the catering facility was under the control of forces personnel, although the civilian contractors would deal with disciplinary matters involving their employees, such as Ms Ausher.
The tribunal found that, by virtue of the MoD’s contract with Serco, and through Serco’s arrangement with Sodexo, the MoD had delegated to those companies the responsibility for duties that would otherwise have been performed by forces personnel. On the evidence, the tribunal was satisfied that, on a day-to-day basis, Ms Ausher was subject to control and received instructions from forces personnel working in the catering facility.
The tribunal held that Ms Ausher was an agent of the MoD for the purposes of the discrimination claim. The MoD was responsible for her unlawful conduct.
The tribunal awarded Mr Kemeh £12,000 for Sergeant Simmons’ conduct, which it found to be “a serious act of racial discrimination” that “undoubtedly caused significant injury to feelings”. It awarded Mr Kemeh £3,500 for Ms Ausher’s discriminatory conduct.
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