Disciplinary and Discrimination

Slow and Steady wins the Race ? Ryan Clement

Reconsideration based on New Evidence - Ryan Clement

This case is a good reminder that there are exceptions to Legal Professional Privilege. Under s.190 (4) of the Legal Services Act 2007, ‘Any communication, document, material or information relating to the provision of the services in question is privileged from disclosure only if, and to the extent that, it would have been privileged from disclosure if—(a) the services had been provided by E or, if E is not a relevant lawyer, by the supervisor, and (b) at all material times the client had been the client of E or, if E is not a relevant lawyer, of the supervisor.’ Under s.190 (3) (b) of the 2007 Act, ‘the individual (“E”) through whom the body provides those services—(i) is a relevant lawyer, or (ii) acts at the direction and under the supervision of a relevant lawyer (“the supervisor”).’ Under 190 (5) of the 2007 Act, a “Relevant lawyer” means, amongst others, an individual who is—a solicitor; a barrister; a solicitor in Scotland; an advocate in Scotland; a solicitor of the Court of Judicature of Northern Ireland; and a member of the Bar of Northern Ireland. Litigation privilege applies if the dominant purpose is related to legal advice or contemplated litigation, regardless of whether the privilege holder is a party to the litigation. The privilege also extends to communications with third parties, and the authority to conduct litigation is irrelevant to the privilege's applicability. The Court of Appeal (‘CA’) case of Al Sadeq v Dechert LLP and others involved a Jordanian claimant who was convicted of fraud in Ras Al Khaimah (RAK) after being arrested in Dubai. He alleged that legal representatives assisting in investigating the fraud violated his rights through unlawful methods to coerce evidence against the CEO and others. The dispute centred on claims of legal professional privilege and the application of the iniquity exception in privilege law. The claimant had challenged the defendants' claims to litigation and legal advice privilege, arguing that documents related to alleged iniquities—unlawful abduction, prison conditions, and denial of legal access—should not be privileged. The defendants applied a 'strong prima facie case' threshold, which the claimant contested. The High Court had held, by applying, 'strong prima facie case,' test, that the relevant documents were privileged and did not fall within the iniquity exception, except in one respect concerning legal advice privilege. The claimant appealed this decision to the CA. Documents created ‘as part of’ or ‘in furtherance of’ the iniquity are not privileged. This includes documents revealing or preparing for the iniquity, with no temporal limit. The disclosure process must be reassessed accordingly, although it is speculative if further documents will be disclosed. Allowing the appeal, the CA held that the correct threshold for the iniquity exception is a balance of probabilities (prima facie case), not a 'strong prima facie case.' This means the iniquity must be more likely than not to exist based on available evidence. The judge had not properly evaluated the evidence supporting each alleged iniquity. Adopting the correct test, the CA held that the material had clearly established a prima facie case of the alleged iniquities. Therefore, save in exceptional cases, the merits threshold for the iniquity exception was a balance of probabilities test: the existence of the iniquity had to be more likely than not on the material available to the decision maker, whether that was the party or legal adviser determining whether to give or withhold disclosure, or the court on any application in which the issue arose. Where there was a prima facie case of iniquity that engaged the exception, there was no privilege in documents and communications brought into existence ‘as part of ’ or ‘in furtherance of the iniquity.’

The issue in this appeal was whether, “the Tribunal acting by a legal officer erred in rejecting a claim because the name of the respondent on the ET1 did not match the name of the employer on the early conciliation certificate.” The claimant, employed by Coach Stores Limited ("Coach") as a sales associate from November 2022 to April 2023, alleged unfair dismissal and discrimination related to ethnic background concerns. After receiving an early conciliation certificate naming Coach as the prospective respondent, the claimant filed an ET1 claim form naming an individual HR manager, Ms. Dickinson of the Tapestry Group (Coach’s parent company), as the respondent, leading to a mismatch with the EC certificate. The claimant was unrepresented at the time and submitted detailed claims primarily referring to Coach and its management practices, without allegations against Ms. Dickinson personally. The applicable rules were the 2024’s predecessor. Rule 12(2A) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013: Rule 12 of the rules in force at the time, so far as relevant, provided: “ 12 – rejection: substantive defects (1) The staff of the tribunal office shall refer a claim form to an Employment Judge if they consider that the claim, or part of it, may be: (f) one which institutes relevant proceedings and the name of the respondent on the claim form is not the same as the name of the prospective respondent on the early conciliation certificate to which the early conciliation number relates (2A) the claim, or part of it, shall be rejected if the judge considers that the claim or part of it is of a kind described in subparagraph (e) or (f) of paragraph (1) unless the judge considers that the claimant made an error in relation to a name or address and it would not be in the interests of justice to reject the claim. ” Stiopu v Loughran [2019] clarified this rule as a "rescue provision" to prevent rejection on technical grounds and requires explicit consideration of error and justice interests by the tribunal. The Watford Employment Tribunal rejected the claim solely based on the name mismatch without addressing these considerations. The claimant argued that the tribunal had failed to apply rule 12(2A) properly and that the claimant’s naming of Ms. Dickinson was an error given the clear focus on Coach in the claim form and details of claim. It was contended that rejecting the claim was not in the interests of justice, especially considering the claimant's unrepresented status and the lack of prejudice to the respondent. Conversely, the respondent argued that the naming of Ms. Dickinson was deliberate, not an error, and emphasised the importance of finality in litigation. It was also submitted that the claimant had researched the law and had sophisticated pleadings, thus the references to Coach did not negate the intention to sue Ms. Dickinson personally. The Employment Appeal Tribunal (EAT) found that the rejection letter’s brevity and failure to address whether an error was made or the interests of justice considered constituted an error of law. The EAT emphasised that tribunals must explicitly consider if a naming discrepancy is an error and whether rejecting the claim is just, reflecting the statutory requirements and precedents such as Stiopuand Balcerzak v George Birchall Service Ltd [2022] . There was indeed an error because the claim form’s focus and multiple references indicated the employer, Coach, was the intended respondent rather than Ms. Dickinson personally. The claimant’s naming of Ms. Dickinson appeared to be a misunderstanding or error, not an intentional naming of a different respondent. The claimant was unrepresented, and the principle of avoiding excessive formality in proceedings supported this interpretation. Regarding the interests of justice, the EAT held that rejecting the claim would be unjust because: The claimant correctly identified the employer and provided detailed particulars of the claim. The error was minor and easily remedied. The claimant would suffer greater prejudice than the respondent if the claim were rejected. The case was at an early stage, so finality concerns were less compelling. The EAT rejected the respondent’s argument that the claim should be dismissed due to finality. The appeal was allowed, the EAT set aside the tribunal’s rejection decision and substituted it with a decision that the claim should proceed. The current rules are, ‘The Employment Tribunal Procedure Rules 2024’ and the corresponding rules are: “ Rejection: substantive defects 13.—(1) Tribunal staff must refer a claim to the Tribunal if they consider that the claim, or part of it, may be— […] (f) one which institutes relevant proceedings and the name of the claimant on the claim form is not the same as the name of the prospective claimant on the early conciliation certificate to which the early conciliation number relates […] (4) The Tribunal must reject a claim, or part of it, if it considers that the claim, or part of it, is of a kind described in sub-paragraphs (f) or (g) of paragraph (1), unless the Tribunal considers that the claimant made an error in relation to a name or address and it would not be in the interests of justice to reject the claim, or part of it. (5) If a claim, or part of it, is rejected, the Tribunal must send a copy of the claim form to each claimant together with a notice of rejection giving the Tribunal’s reasons for rejecting the claim, or part of it. The notice must contain information about how a claimant may apply for a reconsideration of the rejection." This case underscores the necessity for tribunals to apply rules 13(1)(f) and (4) carefully by evaluating errors in naming respondents and balancing interests of justice, especially where claimants are unrepresented and the substance of claims clearly identifies the ‘true’ intended respondent.

BEFORE signing an employment contract, employees are often asked to confirm they have read and understood the organisation’s policies. Some may be contractual, and some may not. Interestingly, however, knowing the policies go both ways. Both the employer and the employee are bound by the same policies. Therefore, one is not in a more superior position to the other. There is a common misconception that the employer will always necessarily know them better than the employee or worker. That is not necessarily the case, at all, especially as many policies are not even drafted or written by the employers themselves! So, their interpretation or knowledge of all the policies contained in the Staff/Employer's Handbook may be no better than those of their own workers. HOWEVER, this short piece is not about policies per se . But it is about Menopause Policies (covering perimenopause; menopause; and postmenopause). There is a lot of good information out there to form the basis of an organisation’s Menopause Policy. And this policy is a must! To still not have one is a grave mistake. Trust me. There are obligations in the UK Employment Rights Bill that may well make it onto the statutory books. Know your law, Know your policies. Under the Equality Act 2010, alone, employers could be exposed to claims of discrimination arising from disability; failure to make reasonable adjustments; victimisation; and direct discrimination because of or harassment related to disability, sex or gender reassignment. This is just to name a few! HOWEVER, my purpose here is not to write about the contents of an organisation’s Menopause Policy, but simply to say that there is a lot of useful information out there, so do tap into them. Here are just a few for starters that may be of assistance to some: NHS: Menopause: www.nhs.uk/conditions/menopause/ NHS: Early menopause: www.nhs.uk/conditions/early-menopause/ Acas: Menopause at work: www.acas.org.uk/menopause-at-work British Menopause Society: thebms.org.uk/ Menopause Matters: www.menopausematters.co.uk/

s.109(1) and (3) of the Equality Act 2010 state, ‘Anything done by a person (A) in the course of A's employment must be treated as also done by the employer,’ and, ‘It does not matter whether that thing is done with the employer's or principal's knowledge or approval,’ respectively. The words, ‘in the course of one’s employment,’ seem easy enough to understand. But those six words are not always easy to apply. If one was employed as a lawyer, drafting, advising and appearing in court would be deemed to be in the course of one’s employment. I think we can all agree on that. What is the position, however, regarding one’s behaviour at an office party that neither involves any of the work hitherto mentioned nor in one’s job description? Can one’s behaviour be deemed to be in the course of one’s employment ? Let's extend it further. What is the position regarding one’s behaviour when being out with one’s colleagues at a local (to the office) wine bar? Can one’s behaviour still be deemed to be in the course of one’s employment ? Ok. Let's extend it even further. What about one’s behaviour whilst sharing a taxi after their evening out at the local wine bar? Can one’s behaviour still still be deemed to be in the course of one’s employment ? I am going to take the easy way out and not seek to answer these, but to say that they are all questions to be determine as matters of fact , applying the correct law ? In the well-known and leading case on the point, Jones v Tower Boot Co. Ltd , an employee, who was aged 16 was physically and verbally racially abused by two fellow operatives. That abuse consisted of, amongst other things, burning his arm with a hot screwdriver, throwing metal bolts at his head and calling him racially abusive names. As a result, the supervisor moved him to another part of the factory, but the abuse continued. He consequently handed in his notice and complained that he had been discriminated against by his employer because of his race. The employer argued that it should not be liable for serious acts of harassment by the claimant’s colleagues on the grounds that those acts were not done in the course of employment. This case was determined under one of the Equality Act 2010’s predecessors, the Race Relations Act 1976, but nothing turns on this. The employment tribunal found that the employee had been unlawfully discriminated on racial grounds and that the acts of the fellow employees had been done in the course of their employment for the purposes of s.32(1) of the 1976 Act, which stated, ‘Anything done by a person in the course of his employment shall be treated for the purposes of this Act […] as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval.’ The Court of Appeal ('CA') agreed. In the case of Waters v Commissioner of Police of the Metropolis , the CA, "had to consider whether a sexual assault, committed by a male police officer (“T”) against a female colleague at a police section house where she had a room and when both were off-duty, amounted to an act committed by T in the course of employment. The tribunal held that the conduct was not done in the course of employment. The Employment Appeal Tribunal (‘EAT’) agreed. Dismissing the appeal, the CA held, “T and the applicant were off-duty at the time of the alleged offence. He lived elsewhere and was a visitor to her room in the section house at the time and in circumstances which placed him and her in no different position from that which would have applied if they had been social acquaintances only with no working connection at all. In those circumstances, it is inconceivable in my view that any tribunal applying the test in the [ Jones ] case could find that the alleged assault was committed in the course of T’s employment.” In Chief Constable of Lincolnshire Police v Stubbs , a female police officer was sexually harassed by a male colleague at a pub where officers had gathered socially after the conclusion of their duties. The employment tribunal considered that the social gathering was closely connected to work and that the male officer’s conduct was done in the course of employment. In Sidhu v Aerospace Composite Technology Ltd , ‘Mr Sidhu was subject to racial abuse by a white colleague at a family day out at a theme park where that family day out had been organised by the employer. The employment tribunal dismissed Mr Sidhu’s contention that this was conduct in the course of employment, notwithstanding the fact that the employers had organised the event at which the conduct had occurred. The employment tribunal regarded as significant that the day out was not in the place of employment but at a public theme park; that everyone was there in their own time, not during working hours, and that the majority of the participants were friends and family rather than employees.’ The CA agreed. However, Gibson LJ said, amongst other things, “I recognise that another tribunal could properly have reached the conclusion that the incident on the day out was in the course of employment. But in my judgment, it is quite impossible to say that no tribunal could have reached the conclusion which the majority did on this point.” In Forbes v LHR Airports Ltd , a colleague of the Claimant, Ms S, posted an image on her private Facebook page, ‘that was capable of giving rise to offence on racial grounds,’ with the caption, “Let’s see how far he can travel before Facebook takes him off”. The image was shared with Ms S’s list of Facebook friends, including another colleague, BW. BW showed the Facebook post to the Claimant. The Claimant complained of harassment by Ms S. Ms S apologised and received a final written warning. Thereafter, the Claimant was rostered to work alongside Ms S. When he raised a concern, he was moved to another location. The Claimant complained to the Employment Tribunal of harassment, victimisation and discrimination. The Employment Tribunal dismissed the complaint. Whilst it found that Ms S had shared an image that was capable of giving rise to offence on racial grounds, her act of posting the message on her Facebook page was not an act done in the course of her employment and was therefore not one for which the Respondent could be liable. The Claimant appealed unsuccessfully to the EAT. It was held that s.109(1) of the Equality Act 2010 renders an employer liable for the acts of an employee done “in the course of employment”. Whether or not an act is in the course of employment within the meaning of that section is a question of fact for the Tribunal to determine having regard to all the circumstances: Jones applied. The relevant factors to be taken into account might include whether or not the impugned act was done at work or outside of work. It might not be easy to determine whether something was done at work if it is done online. In this case, the Tribunal did not err in law in concluding that Ms S’s act of posting the image on her Facebook page was not done in the course of employment; it was a private Facebook account, and the image was shared amongst her Facebook friends, one of whom happened to be a work colleague, BW, who took the subsequent step of showing the image to the Claimant at work. The outcome of the complaint might have been different if BW had been the target of the harassment complaint, as his subsequent act of showing the offensive image to the Claimant was done in the workplace and might be said to have been done “in the course of employment.” The EAT helpfully summarised the following: 13.1. an employer is liable for “anything done” by an employee A in the course of A's employment: s109(1) EQA 13.2. It is the alleged harasser, A, who must be acting in the course of employment: s109(1) EQA 13.3. the term “course of employment” is not to be interpreted in accordance with the well-established meaning in law derived from the law of tort: Jones 13.4. the words “in the course of employment” are used in the sense in which every layman would understand them: Jones 13.5. anti-discrimination legislation should be given a broad interpretation: Jones 13.6. the application of the phrase will be a question of fact for each Employment Tribunal to resolve, in the light of the circumstances presented to it, with a mind unclouded by any parallels sought to be drawn from the law of vicarious liability in tort: Jones 13.7. because the determination of what is in the course of employment is essentially a question of fact for the Employment Tribunal, different decisions may be made in circumstances that appear similar: 13.7.1. a sexual assault, committed by a male police officer against a female colleague at a police section house where she had a room when both were off-duty was found not to have been done in the course of employment: Waters 13.7.2. a male police officer who sexually harassed a female colleague at a pub where officers had gathered socially after the conclusion of their duties was acting in the course of employment: Stubbs 13.7.3. racial abuse by a white colleague at a family day out at a theme park was not done in the course of employment: Sidhu 13.8. the above examples emphasise that the question of whether a “thing” was or was not done in the course of employment is very much one of fact to be determined by the Employment Tribunal having regard to all the relevant circumstances: Forbes 13.9. while it is not possible or even desirable to lay down any hard and fast guidance some factors will generally be relevant such as whether the impugned act was done at work or outside of work: Forbes 13.10. if the “thing” was done outside of work the Employment Tribunal should consider whether there is nevertheless a sufficient “nexus or connection with work” such as to render it in the course of employment: Forbes. The Employment Tribunal may need to consider whether the circumstances are such as to make the situation an “extension of work and the workplace”: Stubbs 13.11. the “thing” may be done in the course of employment although it was not done at the workplace, or in working hours, if there is a sufficient “nexus or connection with work” such as when the situation is an “extension of work and the workplace” 13.12. whether the “thing” is done with the employer's or principal's knowledge or approval “does not matter”: section 109(3) EQA 13.13. a decision by an Employment Tribunal as to whether an act was done in the course of employment can only be challenged if there is a material misdirection as to the law, the decision is perverse in the sense that it falls outside the very wide ambit within which different views might reasonably have been taken about what is done in the course of employment, or the Employment Tribunal has demonstrably failed to take account of an important relevant factor or taken into account an irrelevant factor. In a recent case, AB v Grafters Group Ltd (t/a CSI Catering Services International) , ‘The respondent is a Hospitality Recruitment Agency. The claimant, and a colleague CD, worked from the Cardiff Branch of the Respondent. On 1 November 2021, the claimant incorrectly believed that she was due to work at Hereford Racecourse. She was late arriving at the respondent’s office in Cardiff, where she thought transport had been arranged to take her to Hereford. Instead, the claimant was given a lift by CD, who then told her she was not required to work that day. The claimant requested to be taken home, but instead CD drove her to a golf course near Pontypridd where the Employment Tribunal held that he subjected her to sexual harassment.’ Having directed itself correctly on the law, including, amongst others, the case of Jones , the employment tribunal found that CD did subject the Claimant to sexual harassment. However, on the question of whether the Respondent was liable for such actions because the sexual harassment occurred “in the course” of CD’s employment, it found that CD was not acting in the course of his employment from around 06:00 onwards on 1 November 2021 and, therefore, dismissed the complaint of sexual harassment against the Respondent. The Claimant appeal to the EAT. Allowing the appeal, thew EAT held, amongst other things, “Having concluded that the impugned act was done outside of work (Jones) the Employment Tribunal then needed to go on to consider whether there was “nevertheless a sufficient nexus or connection with work such as to render it in the course of employment” (Forbes) including whether the provision of the lift was an “extension of work and the workplace” (Stubbs).” Employers beware. Training your workers regularly and thoroughly in anti-discriminatory, harassment and bullying behaviour is imperative. Prevention is better than liability!

The Employment Appeal Tribunal (EAT) judgment in X v Y and Others addresses the issue of whether an honest mistake in submitting necessary documents with a timely Notice of Appeal can justify an extension of time to properly institute the appeal. The case involves an appellant who failed to attach all required documents when submitting their appeal, despite having the documents ready, and explores the legal framework and discretion exercised by the EAT in granting extensions of time. The appellant brought complaints of race and sex discrimination, harassment, victimisation, and whistleblowing detriment, which were dismissed by an Employment Tribunal on 10 October 2022. The appellant requested written reasons for the judgment but submitted the Notice of Appeal on 22 November 2022 without attaching the ET1 form, ET3 forms, or grounds of resistance, all necessary to properly institute the appeal at that time. The appellant explained this omission as a genuine mistake, influenced by pressure, a back condition, and dyslexia. The written reasons were sent on 8 December 2022, but the appellant did not immediately forward them to the EAT. The missing documents were provided on 12 February 2023, resulting in the appeal being treated as instituted 25 days late by the Registrar. At the time of the appeal, the EAT Rules 1993 required the appellant to submit a Notice of Appeal along with relevant documents, including the ET1, ET3s, grounds of resistance, and written reasons for the judgment. The time limit for instituting an appeal where written reasons were requested was 42 days from the date those reasons were sent to the parties. The appellant mistakenly believed the time ran from the judgment date, which led to premature submission without all documents. The Court of Appeal has clarified that there is a material difference between failing to submit a Notice of Appeal in time and submitting it in time but omitting some documents. The latter often involves honest mistakes and may justify a more generous approach to extensions of time. r.37(1) of the EAT Rules grants the Tribunal discretion to extend time for any act, including instituting an appeal. The EAT traditionally adopts a strict approach, expecting a full and honest explanation for delays and considering whether there is a good excuse and circumstances justifying an extension. The Court of Appeal in Ridley v HB Kirtley emphasised that discretion must be exercised judicially and fairly, distinguishing between appellants who substantially complied with requirements within time and those who did not submit anything until after the deadline. Honest mistakes in submitting documents can support granting an extension, provided the appellant is candid and there is no significant prejudice to the respondent. From 30 September 2023, r.37 was amended to add r.37(5), which allows extensions for minor errors in submitting relevant documents if the error is rectified and it is just to do so considering all circumstances, including timing and prejudice. The requirement to submit ET1 and ET3 forms was removed. The Court of Appeal in Melki v Bouygues UK clarified that "minor error" should be understood contextually concerning r.3(1) compliance, broadening the discretion to grant extensions for such errors. The Tribunal accepted the appellant's explanation as an honest and genuine mistake to omit the ET1, ET3s, and grounds of resistance. Given the appellant acted with reasonable dispatch after notification of the missing documents and no significant prejudice was claimed by the respondent, the error was deemed minor. Therefore, extensions of time were granted under both r.37(5) and r.37(1), effectively treating the appeal as submitted within time and allowing it to proceed to the sift stage. The judgment also discusses the EAT's practice regarding appeals submitted before receipt of written reasons, noting that such appeals are generally treated as properly instituted if there is a timely request for reasons and the reasons are subsequently provided. This practice furthers expeditious and economical disposal of appeals and aligns with the interests of justice. The EAT Practice Direction 2024 distinguishes between failure to submit a Notice of Appeal on time and failure to submit all necessary documents with a timely Notice. While mistakes generally do not excuse late submission of the Notice of Appeal, minor errors in document submission that are rectified may justify extensions. Conclusion This judgment clarifies that honest mistakes in submitting required documents with a timely Notice of Appeal can justify an extension of time under the revised EAT Rules, particularly r.37(5). The Tribunal exercises discretion fairly, considering explanations, timeliness of rectification, and prejudice to respondents. The appellant’s genuine mistake and prompt correction led to the granting of an extension, allowing the appeal to proceed. 

Tribunal erred for concluding that employee was not entitlement to wages or work

N. Handa v The Station Hotel (Newcastle) Ltd (1) ; A. Handa (2) ; Williamson (3) ; Duncan (4) ; and McDougall (5) This important case concerns a judgment from the Employment Appeal Tribunal (EAT), regarding an appeal by N. Handa (Claimant) against the decision to strike out his claims of unfair dismissal and detrimental treatment related to whistleblowing against several respondents, including his former employer, Station Hotel Newcastle Ltd (R1). Employment Appeal Tribunal Case Overview The Claimant alleged unfair dismissal by R1 and claimed detrimental treatment due to protected disclosures. The appeal specifically concerned the tribunal's decision to strike out claims against R4 and R5, who were HR consultants involved in the grievance and disciplinary processes. ​The tribunal found no reasonable prospect of success for the claims against these respondents, leading to the appeal being dismissed by the EAT. Background of the Case The case revolves around allegations of financial impropriety and subsequent grievances against the claimant, who was employed and later became a director of R1. After raising allegations of financial misconduct, grievances were filed against him by fellow employees, which he claims were retaliatory. ​R4 investigated these grievances, while R5 conducted the disciplinary hearing that led to the Claimant's dismissal. Tribunal's Decision on Strike Out The tribunal concluded that the claims against R4 and R5 lacked a reasonable prospect of success. ​The tribunal emphasised that R4 and R5 were not agents of the R1 in a legal sense. ​It was determined that they acted under contracts for services rather than as agents authorised to act on behalf of R1. ​The tribunal noted that the Claimant's arguments regarding agency were speculative and unsupported by evidence. Legal Principles of Agency The judgment discusses the common law concept of agency and its application in employment law. ​Agency requires a fiduciary relationship where one party acts on behalf of another with authority. ​The tribunal referenced case law, indicating that merely providing services does not establish an agency relationship. ​The absence of a fiduciary relationship or authority to affect the principal's legal relations is a significant indicator against agency. ​ Implications of the Judgment The ruling clarifies the boundaries of liability for external HR consultants in employment disputes. It reinforces that external consultants cannot be held liable for whistleblowing detriments unless they act as agents of the employer. It also highlights the importance of establishing a clear agency relationship to hold individuals accountable for actions taken during employment processes. Notwithstanding the EAT’s decision, the claimant retains the right to pursue claims against R1, ensuring avenues for redress remain open despite the strike-out of claims against R4 and R5. s.109(1)-(4) of the Equality Act 2010 Anything done by a person (A) in the course of A's employment must be treated as also done by the employer. (2) Anything done by an agent for a principal, with the authority of the principal, must be treated as also done by the principal. (3) It does not matter whether that thing is done with the employer's or principal's knowledge or approval. (4) In proceedings against A's employer (B) in respect of anything alleged to have been done by A in the course of A's employment it is a defence for B to show that B took all reasonable steps to prevent A—(a) from doing that thing, or (b) from doing anything of that description. Legal Concept of Agency in Employment In Ministry of Defence v Kemeh [2014], the MoD contracted with Serco, which sub-contracted with Sodexho, for the provision of catering services. The claimant in that case, an army cook, was racially abused by an employee of Sodexho, Ms A, when they were both working in the same mess. The issue was whether her conduct was, for the purposes of his race discrimination claim, done as agent for the MoD with its authority, under s.32 Race Relations Act 1976 (a predecessor of s.109 of the 2010 Act). The case discussed the legal concept of agency, particularly in the context of employment law and the responsibilities of agents and principals. ​The court determined that Ms. A was not an agent of the MoD, as her authority stemmed from her contract with Sodexo, not the MoD. Agency arises when an individual acts on behalf of another, but mere employment by a contractor does not establish agency. The principal may be liable for the agent's actions if they fall within the scope of implied or apparent authority. ​ Grounds of Appeal The case outlines the grounds of appeal related to the tribunal's decision regarding agency and liability. Amongst other things, the Claimant challenged the tribunal's conclusions about the agency status of R4 and R5. He argued that the tribunal erred in its interpretation of agency, fiduciary relationships, and the authority of the respondents. ​ Tribunal's Reasoning and Findings The tribunal's reasoning and findings regarding the agency claims and the dismissal of the Claimant are detailed. It concluded that R4 and R5 were not agents of R1 concerning the dismissal. It emphasised that agency requires more than just providing services under a contract, there must be authority to affect legal relations. Therefore, the tribunal found no reasonable prospect of success for the claims against R4 and R5. Implications of Agency in Employment Law This case highlights the implications of agency in the context of employment law and the responsibilities of employers and agents. ​Agency in employment law can extend liability to agents for actions taken within the scope of their authority. ​The tribunal's decision reflects the need for clear authority and control in establishing agency relationships. This case illustrates the complexities of agency in employment disputes, particularly regarding the roles of external contractors. ​ Conclusion The appeal was dismissed, affirming the tribunal's ruling that the claims against R4 and R5 had no reasonable prospect of success. The EAT held that the arguments presented did not establish a basis for agency liability concerning the dismissal. The outcome of this case underscores the importance of clearly defined roles and responsibilities in employment relationships. THE CASE LINK