The EAT in Mahood v Irish Centre Housing Ltd held that under discrimination legislation, an employer could be held liable for the discriminatory acts of an agency worker in a situation where that worker was exercising the authority of, or being controlled by, the employer or where he had the employer’s authority to do the acts (which were capable of being done in a discriminatory manner just as they were capable of being done in a lawful manner.)

In this case, Mr Mahood, an Irish protestant, worked as a project worker for ICH Ltd. Mr Toubkin was taken on as a temporary worker through an employment agency. Mr Toubkin and Mr Mahood had an uneasy working relationship and Mr Mahood complained that Mr Toubkin regularly made derogatory remarks about protestants and Irish people. Following a further altercation, Mr Toubkin’s engagement was terminated. Shortly afterwards, Mr Mahood’s employment was terminated for unrelated reasons (in connection with a CRB check). Mr Mahood brought claims for discrimination and victimisation.

When considering whether ICH Ltd should be held liable for the discriminatory acts of Mr Toubkin the EAT noted that it was necessary to give a purposive construction to discrimination statutes. A course of employment should be given a wider definition than at common law and there was no need for it to be confined to a wrongful act authorised by the employer or a wrongful unauthorised mode of doing some act authorised by the employer. With regard to the statutory defence that an employer would not be liable if it took such steps as were reasonably practicable to prevent the agency worker from doing the discriminatory acts in question, this defence was limited to matters done in order to prevent a discriminatory act. In other words, only steps taken before the act took place could be taken into account.

This case illustrates the extent of employer’s liability for discriminatory acts of its agency staff. Employers should put in place similar safeguards against discrimination in relation to other workers as they would to their employees. Further, putting matters right after the event will not suffice to get an employer off the hook.