Contractor who suffered monkey chants and racial abuse at Probation Service wins pay out

David Stephenson acted for Mr Odain in his case against HM Prison and Probation Service (HMPPS).

Mr Odain, a HMPPS contract worker, worked as a Probation Officer in their Reading Office from February 2018 until he resigned on 10 January 2020 after being racially abused by another contractor (H).

H made several race-specific comments to Mr Odain in the presence of HMPPS' employees, including "monkey chants""gestures," and referring to Mr Odain as "coloured". Mr Odain reported this abuse to his managers. He raised a formal grievance, but HMPPS failed to take any action against H despite issuing "Management Advice" to those employees present for not intervening to prevent the abuse. Mr Odain resigned when H was allowed to return to work in the same office. All contractors, including Mr Odain, were recruited via an intermediary recommended by the HMPP.

The issue for the Tribunal was whether HMPPS could be liable for the acts of harassment against one contract worker (Mr Odain) carried out by another (H). Mr Odain argued that HMPPS should be responsible for H's actions under section 109(2) of the Equality Act 2010, which provides that "anything done by an agent for a principal, with the authority of the principal, must be treated as also done by the principal". It does not matter whether the relevant act was done with the principal's knowledge or approval. The principal will only be liable if the agent discriminates in carrying out functions he was properly authorised to do.

HMPPS argued that Mr Odain's complaints should be dismissed because there was no employment or agency relationship for which they could be liable. However, the Tribunal was satisfied that the contractual arrangements between HMPPS and H’s employer concerned their statutory core function under section 2(1) of the Offenders Management Act 2007, and if so, requiring H’s employer to carry out such core functions by engaging H, meant they were acting as an agent for HMPPS.

Accordingly, the Tribunal dismissed HMPPS's application to strike out Mr Odain's claims because H could be an agent of HMPPS within the meaning of s.109(2) EqA 2010, following which the cases settled for a significant sum, avoiding the 7-day hearing fixed for April 2024.

The EHRC, who funded this case, said “It is disappointing that, in this case, HM Prison and Probation Service chose to defend themselves on the basis of legal technicalities rather than to commit positively to protect and support their staff.”

David Stephenson of Doughty Street Chambers successfully represented Lloyd Odain instructed by Louise Taft, Jurit Solicitors LLP.

The Judgment can be found here

Media coverage: BBCThe IndependentThe GuardianEvening Standard, and Yahoo! News.

EHRC Statement: