On 9 April 2003 the EAT case of Daniel Ree v Redrow Homes (Yorkshire) Ltd decided that an employer can be held liable in law for disability discrimination against a third party under the Disability Discrimination Act 1995.
In this case, the applicant worked as a contractor. He claimed he had been subjected to a continuing act of discrimination arising from bullying from his colleagues and managers. The issue was whether the employer of his colleagues and managers (who was not the applicant's employer) could be liable in law for disability discrimination against the applicant in the same way as it might be for disability discrimination between its own employees.
What the Tribunals said
The Employment Tribunal held that the employer could not be liable for discrimination by the contractors' colleagues and managers because the contract between the contractor and the employer could not properly be described as one which involved a "contract personally to do work".
However, the Employment Appeal Tribunal (the "EAT") held that the principles in the case of Burton v De Vere (which decided that an employer can be held to have subjected an employee to racial and/or sex discrimination from a third party) should also apply to disability discrimination, despite the slightly different definition of discrimination in the part of the Disability Discrimination Act relating to employment. The principles, as set out in the Burton v De Vere case, are as follows:
tribunals will look at whether the event in question is something that was so much under the control of the employer that the employer should, by the application of good employment practice, have prevented the discriminating act or reduced the extent of it; and
an employer's foresight of an event may be relevant to the question of whether the event was under the employer's control but the foresight, or lack of it, is not a determinative factor.
What the Decision means for employers
Employers may now be held liable for discriminatory acts, whether they be of sex, race or disability in nature, by third parties towards its employees and by its employees towards third parties. Employers, should, therefore, consider:
- whether they employ contractors or other third parties;
- whether the employer is aware or ought to be aware that the contractor or third party may have a disability within the meaning of the Disability Discrimination Act;
- whether the company's policies adequately deal with the issue of discrimination;
- whether the employees and third parties are aware of the company's policies on discrimination;
- whether the employer has taken adequate steps to prevent acts of sex, race, and/or disability discrimination against fellow employees and against third parties; and
- whether the third party is treated in the same way as the company's employees and, if not, can the treatment of them be justified?