Kemeh v Ministry of Defence
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
- LORD JUSTICE ELIAS
- LORD JUSTICE LEWISON
- LORD JUSTICE KITCHIN
Areas of Law
- Employment Law
- Tort Law
- Civil Procedure
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
AI Generated Summary
The case involved an appellant, a black soldier born in Ghana, who faced two racially discriminatory comments while stationed in the Falklands, leading to claims against the Ministry of Defence (MoD) under the Race Relations Act 1976. The Employment Tribunal initially found the MoD liable for both acts. However, the Employment Appeal Tribunal (EAT) overturned the liability regarding a civilian employee's act, stating she was not an agent of the MoD, and reduced the compensation awarded for injury to feelings. The Court of Appeal upheld these decisions, setting legal principles regarding employer and principal liability, agency relationships, and proper compensation standards.
Judgment
Lord Justice Elias :
The facts
This appeal raises two quite distinct issues arising out of two separate acts of racial discrimination. Each involved a racially offensive comment.
The background can be shortly stated. The appellant is black and was born in Ghana. He joined the British Army as a cook in November 2004 and became a British National in 2009. In June 2010 he was stationed in the Falklands where he was subjected to two episodes of race discrimination.
In the first, he was racially abused by Ms Ausher who was a civilian employed by Sodexo as a butcher. Both she and the appellant were working in the Four Seasons Mess, the main catering facility for the Falklands Garrison. Sodexo was a sub-contractor of Serco, which in turn had entered into a commercial contract with the MoD to provide facilities management services in the South Atlantic. That contract provided that those working in the butchery would provide assistance to the NCO in charge of the butchery and carry out such tasks as directed by that officer.
The appellant asked Ms Ausher for some chicken pieces to make fresh soup for a large number of soldiers. She gave him just two pieces and when he asked for more she replied, “Why should I trust you? First you are a Private in the British Army and then you are black”. The appellant was upset; the implication of the comment was that because he was black he was not to be trusted.
In the second incident, a week later, the appellant was told to “shut up you dumb black bastard” by his immediate line manager, Sergeant Simmons, a senior NCO, during the course of a conversation about a football match. The appellant complained and the incident was dealt with informally by Captain Lindsay with the agreement of the appellant. It led to Sergeant Simmons apologising to the appellant and promising that there would be no repetition of such conduct. The appellant at the time accepted this as appropriate redress. Later the case was taken up by the Equality and Diversity Advisor for the Falklands, Flight Lieutenant Hamilton. The appellant confirmed to her that he did not wish to take the complaint further, although he told the Tribunal that in fact it was always his intention to pursue the matter on his return to the UK.
This is what he did. On his return the appellant commenced proceedings in the Employment Tribunal against the MoD on the grounds that they were liable for these two discriminatory acts under the Race Relations Act 1976 (“the 1976