EAT: HHJ James Tayler, UKEAT/0042/20/AT (V), 8 January 2021
This case raises an interesting question as to the extent of vicarious liability for acts of discrimination. While the decision is focused on the definition of employment under the Equality Act 2010, it shines light on the limitations on vicarious liability for harassment/ discrimination.
The claimant was a practice nurse at a medical practice at which the respondent (and appellant to EAT) worked as a locum doctor. A tribunal found that the appellant had subjected the claimant to sexual harassment and sex discrimination, further that the medical practice was vicariously liable because the appellant was an “employee’ under s83(2) of the Equality Act 2010 in the extended sense of working under a contract under which he agreed to do work personally (ie a limb b worker for the purposes of the Employment Rights Act 1996). The appellant sought to defend himself at a preliminary hearing on the basis that he was neither an employee nor an agent of the practice. The EAT ruled that the omission from the Equality Act’s extended definition of employee of the qualification in the ERA 1996 that “limb b” workers must not only have entered into a contract to perform work or services personally but also must not “by virtue of the contract” have the status“of a client or customer of any profession or business undertaking carried on by the individual” made no significant difference (citing Mirror Group Newspapers Ltd v Gunning  IRLR 27, Pimlico Plumbers Ltd v Smith  UKSC 29, Allonby v Accrington and Rossendale College (Case C-256/01 C-256/01)  ECR I-87, Hashwani v Jivraj  UKSC 40, Bates van Winkelhof v Clyde & Co  UKSC 32.
The tribunal had found that there was a contract between the appellant and the practice and that, this having been a contract “personally to do work”, the appellant was an employee of the practice for the purposes of the Equality Act 2010. The tribunal ruled that, in so doing, it had failed to read into s83(2) the caveat imposed by the caselaw listed above, namely, that the individual must not “by virtue of the contract” have the status “of a client or customer of any profession or business undertaking carried on by the individual”. The tribunal having failed to ascertain whether the appellant was in business on his own account and undertook work for his clients or customers, as a genuinely self-employed person, or was properly regarded as an employee in the extended sense for the purposes of the 2010 Act, the appeal succeeded and the matter remitted to a different tribunal to conduct a detailed factual analysis of the appellant’s employment status.
Claimant: Simon Forshaw, instructed by Hegarty LLP Solicitors
Respondents: Andrea Chute, instructed by Royal College of Nursing
post modified 15 January 2022