Union Liable Under the Equality Act 2010 for Discriminatory Acts of Their Elected Officials
In the case of Unite The Union v Sally Nailard, the Court of Appeal upheld the Employment Appeal Tribunal's ('EAT') ruling that Unite the Union, a nationwide union,...
...was liable under the Equality Act 2010 for the discriminatory actions of two of its workplace officials towards one of its employees.
The Facts
Ms Nailard was employed by Unite The Union as a Regional Officer in its Heathrow office. Unite The Union acted on behalf of the airport employees, and some employees of the airport spent all of their working hours as workplace union officials on behalf of Unite The Union. Part of Ms Nailard's job was to interact with these workplace officials.
Ms Nailard raised a grievance with the Unite The Union that two workplace officials had bullied and sexually harassed her. Unite The Union took no action against the officials involved and instead suggested that Ms Nailard be removed from the Heathrow office and moved elsewhere. Ms Nailard resigned, and, in addition to a constructive dismissal claim, issued claims of sex discrimination and harassment against Unite The Union and the officials involved.
The Employment Tribunal ('ET') upheld Ms Nailard's claims. In relation to the discrimination complaints, the ET held that Unite The Union was vicariously liable for the officials, despite their employment being with Heathrow Airport not the Unite The Union.
Unite The Union appealed against the ET's findings on the discrimination complaints to the EAT, which found that although the officials were not employees of the Unite The Union, they were its agents and therefore liable under discrimination law. The locally elected officials were acting as agents for Unite The Union because they were carrying out work on its behalf with members, other officers, and employers. Working with Ms Nailard was something that was within the scope of their authority, even though their conduct amounted to sexual harassment.
They have been wrong to find that the paid officers' failure to investigate and take effective action to protect the respondent, and the decision to transfer her, amounted to harassment or sex discrimination, without considering the state of mind of the individual decision-makers.
The Decision
The Unite The Union appealed the decision of the EAT to the Court of Appeal.
The Court of Appeal held that the officials could not be considered employees of the Unite The Union, but could nevertheless be considered to be its agents. As a result, Unite The Union was liable for their conduct.
Best Practice
Employers should ensure that they have robust anti-bullying and harassment policies and procedures, so there is a framework in place to deal with complaints of this nature.
Further, this case illustrates that the principal of vicarious liability could be extended to the conduct of elected officials, with Unite The Union being found to be responsible for their discriminatory acts, notwithstanding that the individuals were not Unite The Union's employees.