Agents and disability: what is the position?

A disability, unfortunately, can affect anyone.  But, in the context of a commercial agent who is an individual, there are particular legal issues of which a principal needs to be aware. 

The Commercial Agents Regulations

A disability can sometimes be a consequence of illness.  It is important for a principal to bear this in mind as the Regulations enable an agent who, for reason of illness (or infirmity) cannot reasonably be required to carry on their activities as agent to terminate the agency agreement. 

In this situation, the agent will have a claim against the principal under the Regulations for compensation or indemnity.  An agent may also be able to claim other entitlements under the Regulations. 

The Equality Act

Although an individual commercial agent is self-employed, it is the case that they are treated for the purposes of the Equality Act as providing their services personally to the principal.  As such, the agent is likely to be covered by the Equality Act. 

But then what of disability itself under the Equality Act? 

This is not a straightforward question.  However, if it is the case that an agent has a disability for the purposes of the Equality Act, there are two key issues for a principal to bear in mind, namely:

1. it may be necessary for the principal to make reasonable adjustments to the way in which the agent carries out their duties for the principal in order to accommodate the agent’s disability. 
    
2. If the principal were to discriminate against the agent on the grounds of their disability, the agent would: 2.1. be able to claim against the principal for loss resulting from the discrimination – where the amount capable of being awarded to the agent is not capped; and

   2.2. possibly also claim for injury to feelings – up to a maximum amount of around £44,000. 

Take home points

1. For the purposes of the Regulations, a principal needs to be on alert where an agent is ill or infirm as it may be possible for an agent to bring the agency agreement to an end and make a claim under the Regulations against the principal. 
    
2. Sometimes where a principal wishes to bring an agency agreement to an end, the principal will seek to performance manage the agent and, by necessity, to be seen to apply the performance management to all of the principal’s agents.  However, by doing so, a principal may be tripped up by the requirements of the Equality Act. 
    
3. Discrimination against an agent on the grounds of their disability is likely to result in claims under the Equality Act and result in the termination of the agency agreement by the agent who will then be able to go on and make a claim for compensation or indemnity against the principal.