COUNTY DURHAM PROBATION BOARD v (1) MS D JOHNSON [2004] UKEAT 0350_04_3007

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0350_04_3007Case No Appeal No. UKEAT/0350/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
COUNTY DURHAM PROBATION BOARDAPPELLANT(1) MS D JOHNSONRESPONDENT
Before
Mr Justice Mitting Mr G Lewis Dr K MohantyDate 30 July 2004
[1]APPEARANCES For the Appellant MR EDWARD LEGARD (of Counsel) Instructed by: Messrs Spooner & Co Solicitors 24 Junction Street Norton Stoke on Tees TS20 1PL For the Second Respondent For the Seventh Respondent MS NATASHA SETHI (of Counsel) Instructed by: Messrs Sintons Solicitors The Cube Barrack Road Newcastle upon Tyne NE4 6DB MR D STILITZ (of Counsel) Instructed by: The Treasury Solicitor (Employment Team) Queen Anne's Chambers 28 Broadway London SW1H 9JS SUMMARY Disability Discrimination Employer not liable under Disability Discrimination Act 1995 for act of disability discrimination by agent to Applicant who was not employed by employer. THE HONOURABLE MR JUSTICE MITTING The Applicant Ms Johnson is employed as a psychologist by the Prison Service at HM Prison Frankland. By her form IT1, received on 27 June 2003, she claimed that she had been the subject of unlawful discriminatory treatment and harassment on the ground of her disability in the course of her employment by the Prison Service. She named a number of psychologists who she asserted were all employed by the Prison Service and were colleagues of hers.[2]The gravamen of her complaint is that they have each used abusive and discriminatory language to describe her. She claims that the Prison Service are, or might be, liable for those acts of discrimination under section 58 (1) of the Disability Discrimination Act 1995 .[3]In fact the first individual Respondent, Ms Hunter, was and is not an employee of the Prison Service, but is an employee of County Durham Probation Board and is seconded to the prison at Frankland.[4]The Applicant applied to join the Board as seventh Respondent to her application. She did so, if we have correctly understood the basis of her application, in reliance on section 8 (1) (b) of the 1995 Act. Her argument persuaded the Employment Tribunal sitting at Newcastle upon Tyne who, on 26 February, by a decision sent to the parties on 3 March 2004, ordered that the Board be joined as seventh Respondent.[5]The basis upon which the Employment Tribunal made that order is set out in paragraph 10 of their Extended Reasons, which are:
"10. In the event we were satisfied that the County Durham Probation Board ought to be joined as seventh respondent in case number 2503737/03. First, we accepted that there was a potential basis for liability in the event that a Tribunal was to find that the first respondent (who, of course, strongly denies the allegations) had unlawfully discriminated against the applicant. We do not say for one moment that County Durham Probation Board would necessarily have any vicarious liability, but in our judgment there is at least an arguable case to the effect that if a Tribunal finds that the first Respondent has unlawfully discriminated against the applicant she was an agent of the sixth respondent for whose act the sixth respondent may be liable and has thereby aided another person to do an unlawful act within the meaning of section 57 (1) and that the County Durham Probation Board may then be vicariously liable for that act by virtue of section 58 (1)."
The Tribunal went on to consider that whether or not it was just and equitable to join the Board, notwithstanding the lapse of time and concluded that it was.[6]Mr Legard for the Board submits that even accepting the facts alleged by the Applicant there could not be any liability on the part of the Board. He draws our attention to the statutory scheme. In so doing he reminds us, as is undisputed, that the Applicant is not and never has been an employee of the Board. She has, at all times, been and only been an employee of the Prison Service. Nor at any time has she had any form of contractual relationship with the Board.[7]The only basis upon which her claim can be brought is under section 4 (2) of the Act which provides: "(2) It is unlawful for an employer to discriminate against a disabled person whom he employs - …" and then is set out the respects in which it is so unlawful. They include, under (d), "subjecting an employee to any other detriment".[8]Section 8 (1) provides:
"(1) A complaint by any person that another person - (a) has discriminated against him in a way which is unlawful under this Part, or (b) is, by virtue of section 57 or 58, to be treated as having discriminated against him in such a way, may be presented to an employment tribunal."
[9]Section 58 provides:
"(1) Anything done by a person in the course of his employment shall be treated for the purposes of this Act as also done by his employer, whether or not it was done with the employer's knowledge or approval. (2) Anything done by a person as agent for another person with the authority of that other person shall be treated for the purposes of this Act as also done by that other person."
[10]The following propositions emerge undeniably from the statutory language. First, the unlawful discriminatory act upon which an Applicant can rely in this context is a discriminatory act committed by or on behalf of an employer and committed against a person whom that employer employs.[11]"Employment" of course has the wide definition set out in section 68. It includes not only a service contract and a contract of apprenticeship but also "a contract personally to do any other work". But it is clear that for there to be any possibility of an unlawful discriminatory act committed by an employer there must be a contractual relationship existing between the employer and the person whom he employs in that broad sense.[12]Section 8 provides that an employee, so defined, can bring a claim against, first, his employer and, second, under section 57, any person who aids and abets unlawful discrimination by the employer; but section 8 (1) (b) does not create a free-standing and wide-ranging right of complaint, that is to say, one against anyone other than an employer. Section 8 (1) (b) provides that a complaint may be made to an Employment Tribunal where, by virtue of section 58, another person is to be treated as having discriminated against the employee " in such a way ". The "way" referred to there is the "way" referred to in subparagraph (1) (a) which is "a way which is unlawful under this Part"; that is to say, a way which is unlawful under, for present purposes, section 4 (2).[13]The fact that it might be alleged that the first Respondent is the agent of the Board takes the matter no further. Agency might well be relevant if the Board were alleged to be the employer of the Applicant, but no such allegation is made. Consequently, the reasoning of the Tribunal which placed reliance, as it did, upon section 58 (2) is profoundly flawed. There is no basis on the pleaded case upon which the Board could be liable for the actions of the first Respondent because the Board at no time employed the Applicant.[14]For those reasons this appeal is allowed and the order of the Employment Tribunal which it joined the Board as seventh Respondent is set aside.