Key Facts
- •Jessica Anderson (Appellant) claimed disability discrimination against CAE Crewing Services Limited (Respondent).
- •Anderson claimed discrimination by two Aviation Medical Examiners (AMEs), Dr. Watts and Dr. King, who conducted her fitness-to-fly examinations.
- •The AMEs were independent contractors, not employees of the Respondent.
- •Anderson argued the AMEs were agents of the Respondent under Section 109 of the Equality Act 2010.
- •The Employment Tribunal found the AMEs were independent contractors and not agents of the Respondent.
- •Anderson also claimed various other acts of disability discrimination outside the time limit.
- •The Employment Tribunal dismissed several claims as being out of time.
Legal Principles
Section 109 of the Equality Act 2010 (EQA) on employer/principal liability for acts of employees and agents.
Equality Act 2010
The test for agency under the EQA is essentially that at common law; an agent acts on behalf of the principal with the principal's authority.
Ministry of Defence v Kemeh [2014] ICR 625; Unite the Union v Nailard [2019] ICR 28; Bowstead and Reynolds
Vicarious liability is distinct from agency; the test is whether the relationship is sufficiently akin to employment to make it fair, just, and reasonable to impose liability.
Various Claimants v Barclays Bank plc [2020] UKSC 13
Conduct extending over time under section 123(3) EQA can involve different protected characteristics, types of discrimination, and/or people, but the more disparate the treatment, the harder it is to establish.
Worcestershire Health and Care NHS Trust v Allen [2024] EAT 40
Outcomes
Appeal 1 (Agency): Remitted to a new Employment Tribunal for redetermination of the agency question.
The Employment Tribunal erred in applying the wrong test, conflating vicarious liability with agency. The Tribunal did not adequately consider whether the AMEs acted as agents of the Respondent under Section 109 EQA.
Appeal 1 (Disability Discrimination): Remitted to a new Employment Tribunal for redetermination.
The Employment Tribunal's reasoning on disability discrimination claims was incomplete and insufficient, presented in draft form.
Appeal 2 (Timeliness): Appeal dismissed.
The Employment Tribunal did not err in its approach to the time limits; the claimant did not adequately demonstrate that the respondent's attitude changed following knowledge of her bipolar disorder, and the other claims were out of time.
Appeal 2 (Section 15 EQA): Partially remitted to the same Employment Tribunal.
The Employment Tribunal's reasoning was insufficient regarding whether disciplinary proceedings and a final written warning amounted to detriment under section 15 EQA because of something arising in consequence of disability.