Ian Wasserman

Under the Equality Act 2010, for the purposes of liability for discrimination, anything done by an agent for a principal, with the principal’s authority, is treated as having been done by that principal. Where an alleged discriminator is not employed by a claimant’s employer, the claimant may argue that the discriminator is an agent who is acting on behalf of their employer. This may arise, for example, where an independent medical examiner has been engaged by the employer to determine an employee’s fitness for work or where a third party contractor is working on the employer’s premises. Establishing liability in these circumstances may be difficult and complex. In the recent case of Anderson v CAE Crewing Services Ltd, the EAT held that the Employment Tribunal had applied the wrong test when considering whether aviation medical examiners (AMEs) were liable for disability discrimination under the law of agency. 

Ms Anderson was employed by CAE Crewing Services Ltd, which supplies cabin crew to airlines. After suffering a cardiac episode, she was referred by CAE to an AME to obtain a fitness to fly certificate. Ms Anderson disclosed her bipolar disorder to the AME, who incorrectly categorised this as a delusional disorder and referred her to a psychiatrist. She then obtained a GP report and a report from an alternative AME who both confirmed her fitness to fly. Due to the conflicting opinions, her employer referred her to another AME who also referred her for psychiatric tests.

Ms Anderson brought claims of disability discrimination against CAE, alleging that her bipolar disorder had been incorrectly characterised as a delusional disorder and that the third AME had made inappropriate comments about this condition. She accepted that the AMEs were not employees of CAE, but argued that CAE was liable for their actions because they were acting as CAE’s agents. 

The Tribunal dismissed her claim, ruling that the AMEs were independent contractors engaged to provide the specific service of fitness to fly assessments and that there was no agency involved. This meant that CAE could not be liable for the AME’s alleged discriminatory acts under the Equality Act. 

On appeal, the EAT held that in focusing on whether the AMEs’ relationship with CAE was akin to employment, the Tribunal had wrongly applied the test of vicarious liability rather than the test of agent and principal. Vicarious liability is a separate concept which arises where the perpetrator commits discriminatory acts in the course of their employment or where they can be said to be in a relationship with the employer that is akin to employment. A principal / agent relationship is more difficult to establish, not least because there is no single definition of agency. However, a key factor is that the agent must be acting on behalf of the principal. Although the fact that the medical examiners were independent contractors was highly relevant to whether they were agents of CAE, it was not the determinative factor since many agents in a commercial context are independent contractors. Other relevant factors would include the contractual arrangements between CAE and the medical examiners, whether they were truly independent, the nature of their authority and the regulatory context. The case was remitted for a rehearing by a new Tribunal so that the correct test for agency could be applied.

This decision highlights that there is no single definition of agency and establishing an agency relationship will depend on the facts in each case. Under the Equality Act, employers may be liable for discriminatory acts committed by agents acting under their authority. It does not matter whether or not an act is undertaken with the employer’s approval and, as this case illustrates, an employment relationship or a relationship akin to employment is not necessary for liability to be established. Employers should note that external medical examiners and occupational health advisers may therefore potentially be acting as their agents under discrimination law.