Employer not liable for discriminatory act of subcontractor’s employee

Under the Equality Act, an employer is liable not only for the discriminatory acts of its own employees, but may also be liable as principal for discriminatory acts carried out by its agents. Over the years, there has been some debate about when someone will be regarded as an ‘agent’ for these purposes. This issue has been revisited in Kemeh v Ministry of Defence.

The claimant was a cook in the British Army. During a posting in the Falkland Islands, he was subjected to two racially abusive comments: one by his line manager and one by a civilian employee of a subcontractor. When the claimant brought race discrimination complaints, the Ministry of Defence (MoD) accepted liability for the actions of the line manager but denied liability for the actions of the subcontractor’s employee. The question for the Court of Appeal was whether the subcontractor’s employee could be regarded as the MoD’s ‘agent’ so that it was liable for the discriminatory comment as principal…

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