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

In Mahood v Irish Centre Housing Ltd [EAT/0228/10], the EAT held that a hirer is only liable for an act of racial or religious harassment committed by an agency worker if:

• They have become an employee of the hirer, or
• They acted as the hirer's agent when the act of harassment was committed.

Comment

The Mahood case arose before the Equality Act 2010 [EA] came into force.

Under the EA 2010, an employee may argue that their employer is liable for an act of racial or religious harassment - committed by an agency worker - because the agency worker is a third-party.

An employer will be liable for third-party harassment if it knows that an employee has been harassed by a third-party on two previous occasions - but it failed to take reasonable steps to protect the employee from further harassment – e.g. displaying notices about third-party harassment at the workplace.

The employer will be liable for the third-party harassment if the employee has been harassed by the same or a different third-party on each occasion.

Working Abroad

Where a HGV driver works in more than one EU country – the law of the country in which they perform most of their work – will be applied to a dispute about their employment rights: Koelzsch v Luxembourg [C-29/10].