In Kemeh v Ministry of Defence, the Court of Appeal (CA) considered the claim of an employee who was racially abused by an agency worker working at his employer’s premises. Was the employer vicariously liable for the discriminatory acts of an agency worker?

The CA confirmed that, where the guilty party is not an employee, an employer is not liable for their actions unless the act was done with the employer's authority.

This does not mean that the employer has to have expressly authorised the act. The common law test applied as between any principal and agent is: was the agent acting within the scope of his or her authority?

In this case the employer was not vicariously liable even though this might leave the employee without a remedy against anyone.

Points to note –

  • If the guilty party had been another employee, the employer would have been vicariously liable. The test is a different one - was the act done ‘in the course of employment’? This is a wider test, but the employer is provided with a statutory defence if they can show that they took all reasonable steps to prevent the guilty party ‘from doing that thing… or anything of that description’. The statutory defence may be applied, for example, if the employer had in place, and enforced, an appropriate Dignity at Work policy.
  • The CA also confirmed that, in such a case, the remedy for a one-off incident of oral abuse (not resulting in dismissal or loss of job opportunity) should only be compensation for injury to feelings up to a maximum of £6,000.