Mr Mahood is Irish and a protestant and worked for Irish Centre Housing (ICH Ltd) as a temporary project worker, which required a CRB check to be carried out. He worked alongside Mr Toubkin, another temporary project worker hired through an employment agency. M raised a grievance that Mr Toubkin had made derogatory remarks about Irish and protestant people, mimicked his accent, and behaved in an aggressive and intimidating way towards him. The day after, an altercation between the two resulted in Mr Mahood being told to go home by his manager while the dispute was resolved. Mr Toubkin’s agency contract was terminated but Mr Mahood was also dismissed two weeks later because of concerns that he had not been CRB checked.

Mr Mahood presented a number of claims before an employment tribunal under the Race Relations Act 1976 (RRA) and the Employment Equality (Religion or Belief) Regulations 2003 (the Regulations), including that ICH Ltd was vicariously liable for Mr Toubkin’s actions. The tribunal found that there had been victimisation by ICH Ltd, but dismissed claims of discrimination. In the appeal, ICH Ltd submitted that it could only be liable under the RRA or the Regulations if Mr Toubkin was its agent (acting on the employer’s behalf) or ‘employed’.

The tribunal had not made a finding on this issue. ICH Ltd argued that, as an agency worker, Mr Toubkin came within neither category and so there could be no liability. However, the EAT, while holding that Mr Toubkin could not possibly be considered as ‘employed’, also held that under the RRA or the Regulations, an employer could in principle be liable for the discriminatory acts of an agency worker acting as ICH Ltd’s agent where that worker was exercising the authority of, or being controlled by, the employer, or where he or she has the employer’s authority to do the acts in question, where those acts are done in a discriminatory manner but are just as capable of being done in a lawful manner.

The tribunal, however, made no findings on the agency worker’s status, i.e. whether he was acting as an agent, or what steps the respondent had taken to prevent discriminatory conduct. The case was remitted to the same tribunal to re-examine the issue on the basis of the evidence before it and if the tribunal did find the respondent liable, to consider whether the statutory ‘prevention’ defence was made out. The practical implication here is that in certain circumstances an employer could be liable for the discriminatory acts of an agency worker, where he or she is acting as an agent.