The principle of personal liability applies to agents of suppliers of people or services to end users, as is illustrated by the interesting case of Anderson v CAE Crewing Services Ltd (EAT May 2024) (the Supplier) who supplied cabin crew to end user airlines. The cabin crew have to hold “fit to fly certificates” which are issued by aviation medical examiners (AMEs). The claimant, Anderson, was disabled by bipolar disorder and a heart condition. At the Supplier’s behest Anderson was examined by 3 different AMEs following a cardiac arrest. Two of the AMEs provided reports to the Supplier which Anderson regarded as being discriminatory by categorising bipolar as being a “delusional disorder” and in making inappropriate comments about the condition. Anderson brought disability discrimination claims against the Supplier on the grounds that the two AMEs were “agents” of the Supplier even though they were not its employees and the Supplier was liable as the principal under section 109 Equality Act 2010.
The tribunal at first instance dismissed the claim. It found that the two AMEs were “independent contractors” and there was no agency. On appeal the Employment Appeal Tribunal found that the tribunal was wrong to approach the assessment of the agency question in terms of vicarious liability on the basis that their relationship to the Supplier was akin to employment. The question of whether the two AMEs were “independent contractors” or not was not determinative of the agency relationship. They acted as agents of the Supplier with the authority of the Supplier regardless of whether their discriminatory acts were done with the Supplier’s knowledge or approval. An agent can be and often is an independent contractor – often with a corporate identity (a personal service company).
Practical tip
Whilst the Supplier in this case – CAECS Ltd who supplied cabin crew including the claimant to airlines – could be liable for the discriminatory acts of its medical examiner agents, as discussed in the case we reported above (Baldwin) establishes, the individual medical examiner agents can also be liable under section 110. The Tribunal will be able to penetrate the corporate veil of any agent providing his or her service through a personal service company in such circumstances.
