Company not responsible for worker’s racism
An agency worker was racially abusive towards another worker who then took the employer to court on the basis that they, the employer, was responsible for the conduct of the agency worker.
In principle, this position is correct. However, the EAT agreed with the employer that the agency worker was the ‘liability’ of the agency who should take full responsibility for the worker’s conduct.
This is a good result for the employer, but this case highlights the ongoing uncertainty about where an employment relationship exists when workers are provided through an employment agency.
Perhaps the only way to avoid a situation like this (i.e. vicarious responsibility for an employee or worker) is to ensure that you publish solid staff handbooks (which describe your behavioural expectations) and that you follow consistent disciplinary and grievance procedures whenever conflicts arise. If this case had gone the other way the employer would have been exposed to an uncapped fine for racial discrimination.
Case ref: 2010 UKEAT/0278/09
