Employers liable for actions of their agents

Following a recent decision in a race discrimination case, employers are reminded by Holmes & Hills Solicitors' Employment Law specialist that they are liable for the actions of agents working under their instruction, as well the actions of their employees.

In the case of Kemeh v Ministry of Defence, Mr Kemeh was employed by the Ministry of Defence (MoD) in the catering facility of its Falkland Islands base. Also working at the facility were a number of civilians employed by Sodexo, a food services and catering company. Sodexo was sub-contracted to work at the facility by a second firm, Serco Limited, with whom the MoD had a contractual relationship.

When Mr Kemeh was racially abused by a Sodexo employee he brought a race discrimination claim against his own employer, the MoD. Whilst conceding that Mr Kemeh had been the victim of racial discrimination, in its defence the MoD argued it was not liable for the actions of the Sodexo employee who made the racial comments.

At the Employment Tribunal it was held that whilst the Sodexo worker was employed by a third party, the worker in question received day-to-day instruction from MoD personnel and was therefore an agent under its control. As a result the Tribunal decided the MoD was liable for the actions of the Sodexo worker and for her racial comments.

This case acts as a stark reminder to employers to ensure diversity policies governing the actions, behaviour and treatment of employees are also followed by agents of the company. Failing this, employers may find that they are vulnerable to costly claims from the agents themselves and/or the customers or third parties they deal with on behalf of the business.

Holmes & Hills Solicitors provide expert Employment Law advice for employers across Essex and Suffolk.