Ms H Bibi v Change, Grow, Live and H Tomlins: 3313142/2023
EMPLOYMENT TRIBUNALS
Case No 3313142/2023
Between
Ms H BibiClaimantChange, Grow, Live and H TomlinsRespondent
Before
Employment Judge Mr J S BurnsIn person for claimantMs L Goodman (instructed by Solicitor) for respondentDate 5 May 2025
JUDGMENT
The sex harassment claim is struck out against both Respondents
REASONS
[1]The PPH was to determine the First Respondent’s application for an order striking out the sex harassment claim on the grounds that it had no reasonable prospect of success.[2]I was referred to a witness statement of Mr Armitage for the First Respondent (R1). He gave brief oral evidence but was not cross-examined. I was also referred to a 25-paragraph Respondent skeleton argument and a bundle of 678 pages and a 26-page induction folder provided by the Claimant. I had two breaks during the hearing so that the Claimant could read amendments to the skeleton argument and consider the documents in the bundle she wished to refer to. In addition, in response to a request from the Claimant, I asked her to tell me as soon as she wanted any break during the hearing and I tried to slow down the pace of the hearing so the Claimant would be able to take notes if she wished to. The Claimant’s internet connection was slow so she joined by telephone with her CVP camera left on.[3]The claim of sex harassment is that “(i) Saul Trower, on 5 June 2023, rubbed the back of the Claimant’s hand and said “I won’t do that to you” after saying he would select the Claimant to answer questions; and (ii) Saul Trower, on 5 June 2023, rubbed the Claimant’s arm up and down and said “you’re unique aren’t you”.”[4]R1 was given leave on 29/4/25 to amend its response to contend that as Mr Trower (T) had been neither an employee or an agent of it, and it could not be liable for any alleged harassment by him.[5]The Claimant accepts that T was not an employee of the Respondents. It was not contended by her that T was an agent of the Second Respondent. However, the Claimant did contend that T had been the agent of the R1 when he allegedly harassed her. The issue for the PPH was therefore to determine whether that contention had any reasonable prospect of success, and if not whether it was proper to strike the claim out. The facts in the instant case[6]M Armitage’s original witness paragraph 4 read “EFs employees are subject to EFs policies and procedures, and not to those of the First Respondent”. In chief he stated that he wished to change this so it read: “EFs employees are subject to EFs policies and procedures, and also some of those of the First Respondent”. He went on to say that the EF employees when working at the R1 premises were subject to R1 policies such as those pertaining to Health and Safety and Fire Drills etc but not those relating to conduct, or harassment. His suggestion that EF employees were not subject to the R1 anti-harassment policy is contradicted by the terms of the formal subcontractor agreement which I have summarised in paragraphs 11 and 12 below, but in any event, for the reasons given below, the point is irrelevant.[7]The following facts are not in dispute :[8]R1 is a registered charity. T was the employee of a separate organisation called Emerging Futures (EF) , which is sub-contracted by R1 to deliver therapeutic programmes and health and social care treatment services. EF operates in the R1 offices but they have their own management, personnel, and governance structures. There is no employment relationship between the two entities.[9]The relationship between the two entities is (and was in June 2023) regulated by a formal subcontractor agreement, clause 23 of which reads as follows: “Nothing in this agreement is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).”[10]The agreement and its subsequent variation/extensions was signed by a representative of EF but not by T.[11]The subcontractor agreement also contained the following : “SCHEDULE 2 – POLICIES Doc No:11 The following policies and procedures are required to be read, understood and accepted as part of this Agreement and the need to apply and comply where applicable throughout said Agreement in the delivery of service provision by the Subcontractor to CGL: …. CGL Equality, Diversity and Inclusion Policy ….[12]The R1 (CGL) Equality Diversity and Inclusion Policy referred to above included the following : “Our EDI policy reflects and reinforces our commitment to: Create an environment that values diversity and difference, and is free from discrimination, victimisation, bullying, or harassment…. bullying and harassment (is defined as including) … unwanted physical contact … ‘[13]There is no reference to sexual harassment issues in the separate R1 Health and Safety policy.[14]When the Claimant started working for R1, she was issued an induction pack which included the following topics for training/discussion with her as a new employee … “Emerging futures - Saul Trower…the role of EF operating as a partnership within the wider substance misuse service…”[15]The alleged sexual harassment took place when T was delivering training to R1 employees including C at R1 premises.[16]When the Claimant complained to R1 about the alleged sexual harassment in June 23 the complaint was passed by R1 to EF to deal with and was not investigated or dealt with otherwise by R1.[17]There is no document produced in evidence to show that R1 and EF had agreed formally in writing that R1 would not investigate alleged misconduct by EF employees perpetrated while on R1 premises or towards or affecting R1 employees.
Relevant law
[18]For the purposes of the Equality Act 2010, anything done by an agent for a principal, with the principal's authority, is treated as having also been done by the principal (section 109(1)). This is so regardless of whether the agent's acts were done with the principal's knowledge or approval (section 109(3)).[19]In Ministry of Defence v Kemeh [2014] EWCA Civ 91, a black soldier serving as an army chef for the Falkland Islands Garrison brought a claim against the Ministry of Defence (MoD). The MoD had contracted out some of its catering functions to Serco, who subcontracted them to Sodexho. The Claimant approached a butcher (Ms Ausher), who worked for Sodexho, and asked her for some meat. She declined, citing a racially offensive reason. The Court of Appeal held that the butcher was acting as an employee of Sodexho, not as an agent for the MoD. The relevant law applicable was section 32 Race Relations Act 1976.[20]Elias LJ discussed various competing approaches to the interpretation of agency for purposes of discrimination, ultimately favouring the common law definition, which however he found did not include a requirement that the agent should have the power to affect the principal’s relations with third parties.[21]Elias LJ found on the facts in Kemeh as follows: “….the principal will be liable wherever the agent discriminates in the course of carrying out the functions he is authorised to do………Whatever the precise scope of the legal concept of agency, and whatever difficulties there may be of applying it in marginal cases, I am satisfied that no question of agency arises in this case. In my view, it cannot be appropriate to describe as an agent someone who is employed by a contractor simply on the grounds that he or she performs work for the benefit of a third-party employer. She is no more acting on behalf of the employer than his own employees are, and they would not typically be treated as agents. (That is not, of course, to say that employees can never be agents; they might well be, depending upon the obligations cast upon them, such as where a senior manager is authorised to contract with third parties. He will be an employee but will also act as an agent when exercising the authority to deal with third parties.)….In my judgment, Ms Ausher's contract with Sodexo is the source of any authority she has to make decisions relating to the butcher's department in the Mess. It may be, as Ms Romney asserts, that ultimately the MoD would have the right to veto her presence, at least for good reason. But that limited degree of control comes nowhere near constituting an authorisation by the MoD to allow Ms Ausher to act on its behalf with respect to third parties. ………….I would respectfully agree that the fact that someone is employed by A would not automatically prevent him from being an agent of B, and I would not discount the possibility that the two relationships can co-exist even in relation to the same transaction. But in my judgment there would, particularly in the latter case, need to be very cogent evidence to show that the duties which an employee was obliged to do as the employee of A were also being performed as an agent of B. It is in general difficult to see why B would either want or need to enter into the agency relationship. That is so whichever concept of agency is employed. There is a complete lack of such cogent evidence here.”[22]In Unite the Union v Nailard 2018 EWCA Civ 120, the CA dismissed an appeal against judgments below holding that the union was vicariously liable for sex harassment carried out by union officials against union members. The union officials were agents of the union and the sex harassment had occurred in the course of the performance of their duties as such. That was sufficient to hold the union as principal liable. The case is consistent with and re-affirms the principles in Kemeh.
Conclusion
[23]The material facts in the instant case are indistinguishable from Kemeh.[24]The authority of T which he was exercising when he delivered the training course was that which he derived as an employee of EF who in turn had been subcontracted by R1 to provide this service.[25]T was in a different position from the union officials in Nailard because unlike them he did not derive his authority from the Respondent.[26]In the instant case there was no actual contract or other legal relationship between R1 and T and no need to imply an agency relationship between them because T’s work, in the course of which he allegedly sex-harassed C, was done by him as an employee of EF and under the terms of the subcontract, neither of which constituted a contract of agency between R1 and T.[27]The subcontract reflected the reality of the situation as is shown by the fact that when the Claimant complained to R1, it did not purport to assert authority over T but instead referred the matter to EF, which had the relevant authority over him as its employee.[28]As stated in Kemeh, “it cannot be appropriate to describe as an agent someone who is employed by a contractor simply on the grounds that he or she performs work for the benefit of a third party employer”. The mere fact that T was doing work for the benefit of R1 or its employees is insufficient.[29]R1’s diversity policies and the extent to which T was subject to them is irrelevant. Had his work been done under an agency agreement (whether express or implied or otherwise pursuant to an agency relationship between him and R1), then the fact that R1 did not have knowledge or approval of the alleged sex harassment or had taken steps to impose diversity policies, would not have absolved R1 for liability because of subsections 109(3) 109(4) - the statutory defence does not apply to principals. However, that situation does not arise here.[30]I have noted the Claimant’s oral submissions that(i) R1 and EF were held out or described as in a partnership relationship in her induction agreement,(ii) that T did not sign the subcontractor agreement,(iii) that the R1 Health and Safety Code does not refer to harassment(iv) that there was nothing in writing stating that R1 could not investigate or discipline T and(v) that the R1 application to strike out has come very late in the process of this litigation. In my view all these points are irrelevant to the issue I have to decide.[31]There is no evidence that T was R1’s agent and all the evidence (principally consisting in the facts that he was an employee of EF which was subcontracted (expressly other than as an agent) to provide the services which T was providing when he allegedly harassed C), shows that he was not. Hence the claim that T was an agent of R1 has no reasonable prospect of success.[32]It is in the interests of justice and of saving costs that the sex harassment claims against both Respondents should be struck out. Hence I exercise my discretion to that effect.