The case of Ministry of Defence v Mr W Kemeh, is a significant ruling on third-party harassment and employer liability. Can an employer be held responsible for discrimination when the offending individual is not actually their employee?
Mr. W Kemeh, a Black soldier, filed a racial harassment complaint against the Ministry of Defence (MoD). One of his key claims involved a racist remark made by Ms. Ausher, a civilian butcher employed by Sodexho. Sodexho was subcontracted by Serco, the company contracted by the MoD to provide catering services.
Initially, the Employment Tribunal (ET) found the MoD liable under section 32(2) of the Race Relations Act 1976, ruling that Ms. Ausher was effectively acting as the MoD’s “agent.” However, the Employment Appeal Tribunal (EAT) overturned that decision, finding no such agency relationship. The Court of Appeal later upheld the EAT’s ruling, agreeing that the MoD could not be held liable for the actions of Ms. Ausher.
The EAT determined that the ET had applied the wrong legal test in finding an agency relationship. Referring to the established principles in Bowstead & Reynolds on Agency, the EAT clarified that a valid agency relationship requires:
There was no evidence that the MoD had authorised Sodexho—or Ms. Ausher specifically—to act on its behalf in a legal capacity. While military officers may have supervised her daily tasks, mere oversight does not establish agency.
The key issue was whether Ms. Ausher, despite being supervised by MoD personnel and working alongside them, could legally be considered an “agent” of the MoD. According to common law, an agent must not only act for the principal’s benefit but must also have the authority to affect the principal’s legal obligations.
The Court of Appeal was clear: although Ms. Ausher’s work supported the MoD, she was not legally acting on its behalf. As the Court put it, “She is not, as it were, standing in the shoes of the MoD in relation to independent third parties.” The absence of any authority to bind the MoD meant she could not be considered its agent.
This case offers a crucial reminder: employers are not automatically liable for discriminatory acts committed by contractors or third parties. Liability only arises if there is a legally recognisable agency relationship—one that grants authority and creates legal consequences for the employer.
In short, while employers may direct or supervise contractors, such control alone does not establish legal agency. To reduce the risk of vicarious liability, businesses should clearly define the limits of their relationships with contractors and subcontractors.
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