An Employee has no Remedy for Discrimination by an Agency Worker
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17.3.2010 May & Baker Ltd v Okerago 2010 WL 517032 The Employment Appeals Tribunal (“EAT”) overturned an Employment Tribunal (“ET”) decision and held that an employer respondent was not liable for the acts of an agency worker discriminating against one of its employees. A racist comment had been directed at the claimant by an agency worker who worked with her. She raised the matter in a grievance, but this was not investigated by the employer. The claimant was later dismissed for a reason related to conduct. She complained to the ET, which held that the agency worker’s comments were less favourable treatment on grounds of race, and that the employer was liable under section 32 of the Race Relations Act 1976 (“RRA”) for the agency worker’s actions – she was treated as an employee and acted like one. The ET also found that the employer was liable under s.33 for knowingly aiding the agency worker in an act that was unlawful under the RRA, by not investigating the allegation the claimant had made. On appeal to the EAT, the decision of the ET was overturned. There were no findings of fact to support a conclusion that the agency worker was the employer's agent or employee for the purposes of section 32 of the RRA. Neither was the employer liable for knowingly aiding discrimination by the agency worker for the purposes of section 33. Anything done or not done by the employer following the occurrence of the alleged discrimination could not be said to have aided it (as it had already happened) and, as the agency worker was not herself liable (she was not the claimant's employer), there was no unlawful act for the employer to aid anyway. This case highlights the difficulty that employees may face when they suffer harassment or discrimination by agency workers.
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