May 22
The claimant, who had bipolar disorder and a heart condition, worked as airline cabin crew under a contract with the respondent company. After the claimant notified the respondent of a recent cardiac episode, she was referred by the respondent to a doctor who was an aviation medical examiner. The doctor did not consider that he was qualified to assess the claimant in relation to her bipolar condition and advised that she should see a psychiatrist. The claimant had a consultation with a second doctor, who issued her with a fit to fly certificate. The respondent decided that, because there were two conflicting opinions, the claimant should be examined by a third doctor, who, like the first doctor, concluded that the claimant should be referred for a psychiatric examination. The claimant brought complaints that she had been subject to direct disability discrimination, discrimination because of something arising in consequence of disability and harassment by the first and third doctors who, she asserted, were agents of the respondent for the purposes of section 109 of the Equality Act 2010. The employment tribunal found that there was nothing akin to an employment relationship between the respondent and the doctors, who were independent contractors and that the respondent was not liable for any acts of discrimination that may have been done by the doctors.
On the claimant’s appeal—
Held, the appeal was allowed. The concept of agency for the purposes of the Equality Act 2010 was essentially that at common law. Agency required that the agent was acting on behalf of the principal, even if the agent did not have power to affect the principal’s legal relations with third parties. A person or corporation that was an independent contractor could be an agent while exercising the authority conferred by the principal to act on behalf of the principal. In the context of a doctor carrying out an examination for an airline, the question was whether the doctor was acting on behalf of the principal pursuant to authority vested by the principal, as opposed to acting independently, with the airline paying for the provision of that independent service. That was likely to turn on the specifics of the relationship and any statutory or regulatory context within which it occurred. One guide to that assessment might be whether the doctors were in reality company doctors (such as might be employed by the respondent), or whether they were truly independent practitioners from whom an expert opinion was sought. The employment tribunal answered the question whether the doctors were agents of the respondent by considering whether the respondent would be vicariously liable for their actions because there was a relationship akin to employment. However, the tribunal adopted an incorrect analysis. The question was whether, on a proper application of the test set out in section 109 of the Equality Act 2010, the doctors were acting as agents of the respondent and, if so, whether they did so with the authority of the respondent, whether or not the acts complained of were done with the respondent’s knowledge or approval. The question whether they acted as agents was not necessarily answered by determining whether they were independent contractors, although the factors relied on in concluding that there were independent contractors could be highly relevant to the determination of whether they were acting as agents for the respondent. While some of the features identified by the tribunal pointed against agency, it could not be said that there was only one possible answer and, accordingly, the matter had to be remitted for redetermination (paras 17, 18, 28, 29, 30, 31).
Mukhtiar Singh (instructed directly) for the claimant.
Heather Platt (instructed by Starford Ltd) for the respondent.