Employment Law Speed Read – 16/10/17

Ndebele v A Bubble Company Limited

In the case of Ndebele v A Bubble Company Limited a female claimant brought a claim of direct sex discrimination for being prevented from working at an all-male barbecue event.

Facts 

Ms Ndebele (N) was a temporary worker who was signed up to a catering agency. On 28 and 29 June 2016, she worked as a chef for A Bubble Company Limited (B), a catering company that provided food and drink at prestigious events.

On 29 June 2016, B’s Head of Sales, asked the Office Manager (whose job involved obtaining staff for events) to arrange for a chef to assist at a private barbecue that was being hosted by one of his friends. This was a completely private event, and was not being organised by B.

The Office Manager followed the Head of Sales’ instruction and went to the kitchen area to ask the chefs whether they wished to work at the barbecue. She explained that they would be remunerated in ‘cash in hand’ which made it clear that the barbecue was not an event being run by B.

N and four male chefs volunteered to work the barbecue. The Office Manager decided that N would be the most suitable person to work the event. However, on being told that N had been selected, the Head of Sales objected to her appointment on the basis that his friend’s barbecue was an all-male event, and a male chef would therefore be his preference.

Subsequently, the Office Manager went back to N and told her that she would no longer be required for the event. N asked the Office Manager to clarify that she was not needed because she was a woman and the Officer Manager confirmed this.

N brought two allegations of sex discrimination against B, namely the allegation that she was prevented from working the barbecue because of her sex, and a second allegation that her remaining shifts were cancelled shortly after the incident.

Tribunal decision 

The Tribunal held that in respect of the first allegation, B had committed direct sex discrimination. The Tribunal found that B had breached section 41 of the Equality Act 2010: ‘A principal must not discriminate against a contract worker… in the way the principal affords the worker access, or by not affording the worker access, to opportunities for receiving a benefit, facility or service’.

B had sought to argue that this section only related to ‘benefits’ provided by B’s business and that they were simply the messenger in this case. The Tribunal disagreed, stating that there was nothing in the section to suggest that this was the case, and other examples such as giving a worker the opportunity to work or train with a third party could be ‘benefits’ under this section.

B also tried to argue that they were not vicariously liable for the discrimination. The Tribunal disagreed, finding that the Office Manager had carried out the act of discrimination in the course of her employment and that B had failed to present evidence to suggest that they had taken all reasonable steps to prevent the incident from occurring (for example by providing equality training to staff).

N’s second allegation failed, as there was no evidence to suggest that her shifts had been cancelled because of her sex.

Comment

This case clearly shows that organisations can be liable for the acts of their staff even where it appears that those discriminatory acts do not themselves relate to the business of that organisation.

It is a reminder that all staff should have proper equality training and be aware of what could constitute a discriminatory act.

If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.