Background:

The claimant was employed by the respondent as a cabin crew member.  Cabin crew members are required to hold a fit to fly certificate as issued by the Aviation Medical Examiner.  The claimant notified the respondent of having a cardiac episode and was referred.   At an appointment the claimant disclosed she had bipolar disorder and the examiner stated he was not qualified to assess her for that condition.  He also said he would not accept a GP report and instead the claimant should be seen by a psychiatrist.  An alternative assessor provided a fit to fly certificate.  The respondent, bearing in mind two differing reports, decided the claimant should be seen by a third examiner.  The third examiner stated the claimant should undergo a psychiatric examination.

The claimant asserted that the third assessor had made inappropriate comments about her condition and it amounted to direct disability discrimination.  However, she accepted that the examiners were not the respondent’s employees but stated they were their agents.

A second claim of disability discrimination was made with the claimant stating that her colleagues mocked her and shouted at her in relation to her condition.

Outcome:

The Tribunal, at first instance, rejected both of the arguments.  The claimant appealed to the EAT.  On the first ground she stated that the Tribunal did not consider the point about the examiners being ‘agents’ and that they had applied the wrong test in determining whether the respondent was vicariously liable.  The EAT allowed this appeal as the Tribunal had only examined whether they were independent contractors and if they had a relationship ‘akin to employment’ with the respondent.  Instead, Section 109 of the Equality Act should have been taken into account asking whether the examiners were acting as the respondent’s agents and, if so, whether that was with the respondent’s authority, regardless of whether the actions were without the knowledge or approval of the respondent.   Therefore, the claim was remitted.

On the second ground, the Tribunal refused it on the basis that the other colleagues knew nothing about the claimant’s condition and in any event they were out of time.   The EAT stated there was no error in analysing whether acts over time could amount to a course of conduct.  However, an appeal was allowed in part citing that there was insufficient reasoning given regarding claims of detriment when the respondent initiated disciplinary proceedings and issued a final written warning.

Practical Guidance for Employers:

This case provides an interesting examination of the potential responsibility for an employer considering actions of those who would be regarded as ‘third parties’.  Being agents, rather than employees or workers, of the respondent will be sufficient that there may be a responsibility when it comes to discriminatory acts and that should be taken into account in considering issues that may be raised by employees with these concerns.

https://assets.publishing.service.gov.uk/media/664dbb3aae748c43d3793fe1/Ms_Jessica_Anderson_v_CAE_Crewing_Services_Ltd__2024__EAT_78.pdf