ICH, a charitable housing association providing supported housing for vulnerable people, employed Mahood as a project worker. It also engaged an agency worker called Toubkin. Mahood alleged that Toubkin had made racially derogatory comments and behaved in an aggressive and intimidating way.
ICH held a meeting with Toubkin and warned him his behaviour was unacceptable and that his agency would be informed. The following day there was an altercation between Mahood and Toubkin. Mahood was sent home while the dispute was resolved and Toubkin's engagement was terminated.
ICH was concerned that Mahood's Criminal Records Bureau clearance, to which his appointment was subject, had not been obtained, restricting his ability to work with clients. The housing association told him to get clearance by a specified date or his employment would be terminated. Clearance was not obtained so his employment was ended. Mahood alleged discrimination and victimisation, but this was not upheld by the housing association. He subsequently brought claims in the employment tribunal.
The legal decisions
The tribunal found that Mahood's first grievance constituted a 'protected act' under the Race Relations Act 1976 - now superseded by the Equality Act 2010 - and that, in sending him home the following day, ICH had victimised him. However, it dismissed his claims of discrimination relating to the behaviour of Toubkin. Mahood appealed against that decision.
The Employment Appeal Tribunal considered whether ICH was vicariously liable for Toubkin's acts of discrimination. He was an agency worker, so this could be the case only if Toubkin had become an employee or had acted as ICH's agent.
The appeal tribunal found Toubkin was not an employee, but that he could have been an agent. It has sent the case back to the original tribunal to re-examine this issue and, if it finds ICH was liable, to consider whether it had established the statutory defence - that it took all reasonable steps to prevent a discriminatory act.
Lessons for charities
Under the Equality Act 2010, charities will be liable for discriminatory acts committed by their employees or people acting as their agents unless they can establish the statutory defence. Furthermore, charities will be liable for harassment committed by third parties, such as service users or suppliers, where it has occurred on at least two previous occasions, they are aware that it occurred and they did not take reasonable steps to prevent it from happening again.
Charities should ensure they have an up-to-date equal opportunities policy and a robust procedure for handling complaints of discrimination, and that these are communicated and followed. Providing training and keeping records are also key.
Victoria Willson is a partner at Levenes Employment, third sector specialists