“It Wasn't Me" - the confusing world of liability for acts of third parties.

In Peninsula Business Service Limited v Baker UKEAT/0241/16/RN the EAT made a number of interesting findings relevant to the law on the liability of employers and ‘principals’ under the Equality Act 2010 (EqA) in relation to victimisation occasioned by third parties.

Mr Barker was a lawyer employed by Peninsula Business Service Limited.  He alleged that he had dyslexia and refused to take on a piece of work on this basis.  PBS referred Mr Barker to occupational health and Mr Barker provided medical records which claimed he was likely to be disabled in accordance with the EqA.

PBS became suspicious that Mr Barker was not actually disabled and thought Mr Barker was working elsewhere contrary to his employment contract. PBS instructed Brownsword Group, a third party, to place Mr Barker under covert surveillance for a week to see what he was up to.

After learning that Mr Barker had been placed under surveillance he brought a claim of harassment and victimisation against PBS in the Employment Tribunal.

Claims for ‘harassment’ and ‘victimisation’ (both forms of discrimination) have a very specific meaning under the EqA, and will only succeed if the act complained is related to a protected characteristic (such as race, sex, religious belief etc). In this case, Mr Barker said that the reason he was placed under surveillance was related to his disability.

Mr Barker succeeded in his claim at the Employment Tribunal for harassment and victimisation.  The Tribunal considered PBS’s decision to place him under surveillance was because of his disclosure that he was disabled.

PBS appealed the Tribunal’s decision to the Employment Appeal Tribunal (EAT) who made some interesting observations:

• it was not sufficient for Mr Barker to simply assert that he was disabled in order to support his harassment claim. Mr Barker actually needed to prove that he was disabled before the Tribunal could make a finding of harassment;
  
  
• conversely, the claim for victimisation did not require Mr Barker to prove that he was disabled; it was sufficient for PBS to suspect he might be disabled, so long as Mr Barker had not acted in bad faith in claiming he was disabled; and
  
  
• the Tribunal had wrongly held that PBS were liable for victimisation for putting Mr Barker under surveillance, because the surveillance was carried out by a third party who were unaware of Mr Barker’s disability altogether.

What does this mean for you or your business?

In some cases employers may escape liability for victimisation carried out by third parties (in this case, a company carrying out covert surveillance) if that third party is not aware of the reason the surveillance is being undertaken.  However, employers are well advised to proceed with caution in relying upon this defence. It is a complicated area of the law, it very much turned on its own facts and Tribunals will not want employers hiding behind the laws of vicarious liability in order to escape liability.

What do you need to be doing now?

The facts of this case are quite unique, however the learning points which can be extracted from it are as follows:

• if an employee asserts that they have a disability, a medical report should be obtained as soon as possible in order to confirm whether their alleged condition actually qualifies as a disability under the EqA;
  
  
• a simple allegation from an employee that they have a ‘disability’ is not enough to afford them protection from harassment – they actually need to be disabled under the EqA in order to succeed in a claim; and
  
  
• employers may not be vicariously liable for the alleged discriminatory acts carried out by third parties if that third party is not aware of protected acts.

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.