Ms Okerago was employed by May & Baker as a pharmacy inspector from 17 April 2001. She was dismissed on 28 March 2007, purportedly for a reason relating to her conduct. Okerago claimed in an employment tribunal that her dismissal was unfair and discriminatory on the ground of her race.
Okerago alleged that an agency worker, Ms Dower, supplied to May & Baker by the recruitment company Adecco, made a racially offensive remark to her in July 2006, during the football World Cup. It was alleged that Okerago was asked if she would support England or her own country in a World Cup match and that, when she replied “my country”, the response was to ask what she was doing here and to tell her to go back to her own country. Okerago maintained that a grievance she raised about the alleged remark was not fully investigated by May & Baker.
The employment tribunal found that the comments made by Dower amounted to less favourable treatment on the ground of Okerago’s race, and that May & Baker was liable for direct discrimination.
May & Baker appealed to the Employment Appeal Tribunal (EAT). The basis for May & Baker’s appeal was that it was not liable for the alleged race discrimination because Dower was an agency worker and not an employee.
The EAT asked the tribunal judge to explain the tribunal’s findings. In particular, the EAT requested clarification on the issue of Dower’s employment status.
The tribunal judge’s reply set out that Dower worked under the day-to-day control of May & Baker and that she was treated like any other employee. The tribunal judge reasoned that May & Baker could be liable for Dower’s acts as though it was her employer.
The tribunal judge also said that May & Baker’s failure to properly deal with Okerago’s grievance meant that it had knowingly aided and condoned Dower’s comments.
The EAT allowed the appeal and substituted a decision to dismiss Okerago’s claim. The EAT held that the tribunal did not make sufficient or proper findings of fact to reach the conclusion that Dower was an employee. In particular, the EAT held that it was not possible to establish a relationship of employer and employee simply because Dower was treated as an employee. In addition, the EAT held there were no facts to support a finding that Dower acted as an agent of May & Baker.
On the question of whether May & Baker knowingly aided and condoned Dower’s comments, the EAT held that a person cannot aid another to do something that the other person has already done. As such, the EAT decided that May & Baker could not have aided and condoned Dower’s comments because they had taken place prior to Okerago raising a grievance.
This decision should be welcomed by employers that engage agency workers, as it demonstrates the difficulties that an employee will face when trying to establish liability for direct discrimination due to the acts of an agency worker.
The case is also a useful reminder to employers in advance of this year’s football World Cup – starting on 11 June – of the sort of behaviour that employers should be seeking to clamp down on during the tournament.
Chris Bains, solicitor, Thomas Eggar