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What if employees are harassed by co-workers employed by a different employer?
[ch 6: pages 178-179]Increasingly, as a result of outsourcing, workers find themselves working alongside people who have a different employer, for example, temporary agency workers or direct employees of a facilities management company. Employees discriminated against by co-workers who are employed by a different employer may have no claim under the EA 10. This surprising conclusion was reached in Kemeh v Ministry of Defence [2014] EWCA Civ 91:
Mr Kemeh, who was black, was employed by the MOD as a cook. He was subjected to racial discrimination by an employee of sub-contractor Sodexo that, in turn was a sub-contractor of Serco, the organisation engaged to provide facilities management services to the MOD on its Falkland Islands base.
The Court of Appeal ruled that Mr Kemeh had no remedy in discrimination. He had no remedy against Sodexo, because he had no contract to work for them. He had no remedy against the MOD because the perpetrator of the discrimination was neither employed by the MOD nor acting as the MOD’s agent. It made no difference to this surprising conclusion that the perpetrator was fully integrated into the MOD’s workforce and worked under its direction and control.
Kemeh v Ministry of Defence [2014] EWCA Civ 91
The Kemeh case demonstrates, once again, how employment laws fail to keep up with change and to respond to the fragmented employment relationships created by outsourcing. The Court of Appeal has suggested that legislation may be needed to plug this gap in protection. At the moment, the law provides a right for contract worker to claim against the end user or hirer for whom they provide services (in this case, the MOD) but fails to impose liabilities on the hirer for the acts of that contract worker. The outcome also underlines why it was a mistake to repeal the straightforward provisions under the EA 10 that fixed employers with liability for third party harassment (see page 177).