Aiding and abetting discrimination

[Thanks to James Bickford Smith of Littleton Chambers for providing this case summary]

In May & Baker Ltd t/a Sanofi Aventis Pharma v Okerago the EAT (HHJ Birtles) has considered the meaning and application of sections 32 and 33 of the Race Relations Act 1976 for the in overturning a finding that a Respondent employer was liable for the discriminatory acts of an agency worker. During the 2006 World Cup the agency worker had told the Claimant to "go back to her own country". The Tribunal found that the Respondent's failure to investigate this incident adequately, and its reaction to the Claimant's subsequent grievance, meant that it had "aided" the agency worker within the meaning of s. 33. The Respondent had "been complicit in allowing an environment to continue where such conduct could take place". The EAT made the following findings as to section 33:

• All the conduct of the Respondent complained of post-dated the World Cup incident. As a person cannot aid another to do something which the second person has already done, liability under s. 33 could not be based on that conduct.
• "In any event, allowing an environment where particular conduct could take place does not amount to aiding that conduct. Merely allowing an environment to exist does not amount to the relationship of "co-operation or collaboration" referred to in Anyanwu" (Anyanwu and Another v Southbank Students' Union and Southbank University [2001] IRLR 305). Nor could it amount to "knowingly" aiding that conduct.
• The tribunal failed to ask itself the question that assuming the employer aided the contract worker to do an act, would that act be unlawful if done by the worker? The agency worker's act was not unlawful in itself, and the employee had no claim against the agency worker; therefore even if the employer aided the worker's act, it would not have aided an act made unlawful by the RRA.

As to s.32, the Tribunal had failed to address the questions of employment status properly. There were no factual findings to support a conclusion that an employment or agency relationship existed between the worker and the employer. The Tribunal set aside the relevant part of the Tribunal's judgment and substituted a decision that the allegation of direct discrimination be dismissed.