Miss E Ekpo v Harvey Nichols Group Limited and 1 other — 2020

This was a preliminary hearing in Miss Ekpo's claims of sexual harassment and victimisation under sections 26 and 27 of the Equality Act 2010. The tribunal did not decide the merits of those allegations. It decided instead whether she could pursue the claims against Harvey Nichols Group Limited as a contract worker, and whether the first respondent could be liable for the acts of the security guard Mr Borrikinni as his agent.

On the contract worker issue, the tribunal held that Harvey Nichols Group Limited was a principal and that Miss Ekpo was a contract worker supplied by the second respondent. It relied on the commercial arrangement under which the first respondent owned the Laura Mercier stock, controlled store approval, imposed dress-code and conduct requirements, and exercised influence over day-to-day work on the counter. The tribunal also found that Miss Ekpo carried out work for the first respondent through sales, refunds and exchanges, and promotional events, and rejected the submission that section 41 of the Equality Act 2010 should be read more narrowly than the earlier legislation considered in Harrods and Leeds.

On the agency issue, the tribunal accepted that Mr Borrikinni was a worker supplied by Olympian Security and that William Fisher and other first respondent employees controlled his day-to-day activities in the store. However, applying Kemeh, it held that the claimant had not produced very cogent evidence that Mr Borrikinni was authorised to act on behalf of the first respondent when carrying out searches or apprehending people. The claim that Harvey Nichols Group Limited was liable for his acts under section 109(2) therefore failed. No remedy was determined at this hearing, and the tribunal indicated that the matter would proceed to case management.