Home » Anderson v CAE Crewing: EqA liability for agents

Anderson v CAE Crewing: EqA liability for agents

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Last updated 7th June 2024.

The EAT considered the test for who is an “agent” under s.109 Equality Act (EqA), so that the person for whom they act is liable for them under the EqA. The tribunal EAT held that the doctors in this case might be agents within s.109 even though they were in business on their own account.

2024, Employment Appeal Tribunal (EAT). Full decision: www.bailii.org/uk/cases/UKEAT/2024/78.html

Facts

The employer supplied cabin crew to airlines. Cabin crew were required to hold Fit to Fly certificates (“FTFCs”), issued by Aviation Medical Examiners (“AMEs”) after a medical assessment. AMEs were approved by the Civil Aviation Authority. The employment tribunal (ET) held that AMEs were independent of the employer and of the CAA, and that the assessments were covered by statute and CAA rules, but did not make detailed findings.

The claimant brought proceedings against her employer in respect of acts by AMEs which she claimed were disability discrimination. She claimed the AMEs were agents of the employer, so that under s.109 EqA the employer was liable for what they did.

Barclays case

Various claimants v Barclays Bank plc (bailii.org) in 2020 was an important case on vicarious liability of an employer in tort (including eg negligence), where the individual who does the wrong was not an employee. A bank contracted with a doctor to conduct pre-employment medical checks on young female recruits. The doctor was alleged to have sexually assaulted them.

The Supreme Court in the Barclays case held that the question was whether the doctor was carrying on business on his own account, or whether he was in a relationship akin to employment with the bank. In Barclays the doctor was carrying on his own independent business, so the bank was not liable.

ET decision

The employment tribunal (ET) in Anderson v CAE Crewing applied the Barclays case (above) to the present case, and held that the AMEs were not agents of the employer within s.109 EqA. The ET said there was nothing akin to an employment relationship – the AMEs were independent doctors with a portfolio of clients and patients.

EAT decision

The Employment Appeal Tribunal (EAT) in Anderson v CAE Crewing upheld the claimant’s appeal. The ET had applied the wrong test, and the case should be reconsidered by an ET. Baroness Hale in the Barclays case had decided that the bank was not vicariously liable because the doctor was genuinely an independent contractor, rather than in a relationship akin to employment. However, said the EAT, Baroness Hale there specifically disavowed any consideration of agency. The EAT said that certainly in the commercial context, there was nothing unusual in an agent being an independent contractor, and many agents had corporate identity. [§27-28]

The editors of Bowstead and Reynolds (a book on agency) suggested that “agency may best be seen, not as a status, but as a description of a person while exercising the authority conferred by the principal to act on the principal’s behalf.” Thus an independent contractor may be an agent while exercising such authority [§29]. The EAT continued:

Thus in the context of a doctor carrying out an examination for an airline the question would be that of whether the doctor was acting on behalf of the principal pursuant to authority vested by the principal, as opposed to acting independently; the airline paying for the provision of that independent service. This is likely to turn on the specifics of the relationship and any statutory or regulatory context within which it occurs. One guide to this assessment might be that of whether the doctors are in reality company doctors (such as might be employed by the [employer]), or whether they are truly independent practitioners from whom an expert opinion is sought. [§30]

The EAT accepted though that the factors relied on by the ET in concluding that the AMEs were independent contractors could be highly relevant to the determination of whether they were acting as agents within s.109 EqA [§31].

Comments

There is more on the test under s.109 EqA at Who is liable under the Equality Act>Agents.

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