Hirer is not liable for the discriminatory act of an agency worker

In May & Baker Ltd (t/a Sanofi-Aventis Pharma) v Okerago [EAT/0278/09], the EAT held that a hirer was not liable for a racist remark made by an agency worker. For example, the tribunal was not entitled to rule that the hirer was liable for the remark under s. 32 of the Race Relations Act 1976 (RRA) because the agency worker was “treated as an employee on a day-to-day basis and acted as one”. The tribunal did not establish any facts which permitted it to reach such a conclusion.

Aiding Another Person to Discriminate

Section 33 of the RRA 1976 provides that it is unlawful for a person (e.g. an employer) to knowingly aid another person (e.g. a worker) to commit an act of racial discrimination.

The EAT said that in order to knowingly aid the commitment of such an act – the employer must aid the worker to commit the act before or at the time it was committed.

Therefore, an employer’s behaviour after the discriminatory act has taken place did not amount to knowingly aiding a worker to commit such an act, e.g:

• Failing to investigate a complaint about a racist act committed by the worker.
• Allowing an environment to continue where a racist act could take place. Such an environment did not mean that the employer had collaborated with the worker to commit such an act: Anyanwu v South Bank Students' Union and South Bank University [2001] UKHL 14.