Anderson v CAE Crewing Services Ltd (DISABILITY DISCRIMINATION) [2024] EAT 78 (22 May 2024)

Heather Platt represented the Respondent Cabin Crewing business in this case which deals with agency pursuant to section 109 Equality Act 2010.

The EAT held that an employment tribunal undertook an incorrect analysis when considering whether medical examiners who undertook ‘fitness to fly’ assessments acted as agents of a company that supplies cabin crew to airlines under S.109 of the Equality Act 2010. The tribunal incorrectly adopted the test for vicarious liability by considering whether the relationship between the examiners and the company was akin to employment, and answered that question in the negative because the examiners were independent contractors. The fact that the examiners were independent contractors was not determinative of whether they were agents of the supply company under S.109, although the factors relied on in concluding that they were independent contractors could be highly relevant to the determination of that issue.

Ms Anderson disclosed that she had bipolar disorder in a form that she was required to complete during a medical assessment process. An Aeromedical Doctor advised that Ms Anderson should attend an appointment with a psychiatrist so that The Respondent could obtain a report. Ms Anderson arranged a consultation with an alternative Aeromedical Doctor, who issued her with a FTFC, and this was provided to the Respondent. However, the Respondent decided that, as there were two conflicting opinions, A should be examined by a third Aeromedical Doctor, who concluded that A should be referred for psychiatric examination. A brought disability discrimination complaints against the Respondent. She asserted that the Aeromedical Doctor had incorrectly categorised bipolar as a delusional disorder and that they had made inappropriate comments about the condition. She accepted that the Aeromedical Doctors were not employees of the Respondent but she asserted that they were its agents for the purposes of S.109 of the Equality Act 2010, such that the Respondent was liable as the principal.

The employment tribunal dismissed Ms Anderson’s claim. It found that the Aeromedical Doctors were both independent contractors engaged to provide a specific service (the assessments for FTFCs) and there was no agency involved that would render the Respondent liable for the acts of the Aeromedical Doctors.

The EAT allowed Ms Anderson’s appeal.  The correct question under S.109 EqA was whether the Aeromedical Doctors were acting as agents of The Respondent and, if so, whether they did so with the authority of the Respondent, regardless of whether the acts complained of were done with the Respondent’s knowledge or approval.

The EAT held that the question of whether the Aeromedical Doctors acted as agents was not necessarily answered by determining whether they were independent contractors, although the factors relied on in concluding that they were independent contractors could be highly relevant to the determination of whether they were acting as agents.

The EAT went on to consider whether, despite the tribunal’s misdirection, there was, in reality, only one possible answer to the agency question on the basis of the facts found by the tribunal. While it considered that some of the features identified by the tribunal pointed against agency, it could not say there was only one possible answer, particularly as there were only limited findings about the contractual arrangements between the Respondent and the Aeromedical Doctors, and little consideration of the statutory/regulatory context.

The ET judgment that the parties received appeared to be in draft form and had key parts of the decision making process missing: the appeal was allowed. The EAT remitted Ms Anderson’s claim for redetermination by a freshly constituted tribunal.

Heather Platt is instructed by Amanda Lyons of Starford Legal.

For further information about Heather’s practice, or to instruct her or any other member of our employment law team, please contact Dean Cunniff, First Junior Civil Clerk on 020 7353 0711 or via email: clerks@pumpcourtchambers.com.