Tribunal applied the wrong test when considering whether contracted Aviation Medical Examiners were agents under section 109(2) of the Equality Act 2010

The Claimant was employed by the Respondent, who supplies cabin crew to airlines. Cabin crew members are required to hold a fit to fly certificate, which is obtained following an examination with an aeromedical examiner, known as an AME. The Claimant, who has bipolar disorder and a heart condition, brought disability discrimination and harassment claims relating to the AMEs she was referred to by the Respondents. The tribunal dismissed the claims and held that the AMEs were not agents under section 109(2) of the Equality Act 2010 “(EqA”) but were independent contractors.  The Claimant appealed. 

The EAT agreed that the tribunal had applied the wrong test and erred by focussing on whether the relationship between the AMEs and the Respondent was akin to an employment relationship, relying upon Various Claimants v Barclays Bank plc [2020] UKSC 12; [2020] AC 973 which had specifically disavowed considerations of agency. The common law of agency should have been considered and applied (Kemeh v Ministry of Defence [2014] EWCA Civ 91, [2014] IRLR 377).  Agency is best seen not as a status, but a description of a person while exercising authority conferred by a principal to act on its behalf. 

Further grounds in relation to inadequate reasoning (and in parts a draft form judgment) also succeeded and the case was remitted for a rehearing before a new tribunal. 

In relation to a second joint appeal, which related to the Claimant’s alleged treatment when she returned to work following the issuing of a fit to fly certificate, the EAT upheld one ground in relation to inadequate reasoning and the matter was remitted to the same tribunal.  

Mukhtiar represented the Claimant in both appeals via the Direct Access Scheme.

The judgment can be found here.