Ms C Palmer, Counsel For the v Respondent — 2018

At a preliminary hearing in London Central on 10 and 11 December 2018 before Employment Judge Davidson, the tribunal considered whether R2, R3 and R4 were employees or agents of R1 or R4 for Equality Act purposes, and whether any claims should be struck out or an alternative respondent added. The claimant had moved from UK-based work for R1 to the KONE account under an intra-group services agreement, reported day-to-day to R2, and alleged sexual harassment by R2 from October 2015. She later raised concerns through R1 HR, R3, Georg Pepping and R4's compliance team.

The tribunal held that each company in the Deutsche Telekom group was a separate legal entity and that the claimant was an employee of R1 only. R2 and R3 were employees of T-Systems Belgium, not of R1 or R4. Applying sections 109-110 Equality Act 2010 and the agency principles referred to in Kemeh v MOD, the tribunal found that R2 was R1's agent because R1 had delegated day-to-day management of the claimant to him, including his role in the redundancy consultation process and other management decisions. The tribunal rejected the submission that the group structure made all staff employees of all group companies.

By contrast, the tribunal found that R3 was not R1's agent. Although the anti-harassment procedure identified her as a person to whom complaints could be made, she was free to delegate the investigation and in fact nominated Georg Pepping. The tribunal also found no evidence that R4 was R1's agent, and no evidence that R2 and R3 were employees or agents of R4. It therefore held that R1 was liable for the acts or omissions of R2, but not for R3, and that R4 had no liability towards the claimant. The claims against R3 and R4 were struck out, the claims against R1 and R2 were allowed to proceed to a full merits hearing, and no monetary award was made at this stage.