In the recently reported decision of Unite the Union v Nailard, the Employment Appeal Tribunal has considered whether workplace union officials were employees or agents of the Union, in the context of vicarious liability under the Equality Act 2010.

We know that employers are potentially vicariously liable for acts of discrimination carried out by their employees. In addition, under s109(2) Equality Act 2010, an employer can also be vicariously liable for discrimination carried out by its authorised agents, whether or not the employer knew about, or approved of, their actions.

The facts

Sally Nailard was employed by Unite the Union (“Unite”) as a Regional Officer based at Heathrow Airport Limited (“HAL”).

In 2014, she raised a grievance alleging sexual harassment and bullying against two of HAL’s workplace union representatives, Mr S and Mr C. Both men were full-time employees of HAL. Unite dealt with Miss Nailard’s grievance poorly; instead of dealing firmly or decisively with either perpetrator, they ultimately transferred Miss Nailard out of Heathrow.

Miss Nailard resigned in response, issued claims in the Employment Tribunal for constructive dismissal and sex discrimination and won.

The ET found that the two workplace union reps had bullied and harassed Miss Nailard in a way which amounted to sexual harassment. The ET went on to find that Unite were vicariously liable for this unlawful conduct, either because the men were employees of Unite, or because they were agents of Unite. The ET also found that the inappropriate handling of Miss Nailard’s grievance by Unite, constituted further harassment and sex discrimination.

Unite appealed these findings and the Employment Appeal Tribunal considered the following questions :

  • Were Mr S and Mr C employees of Unite?

Clearly Not. No contract existed between these men and Unite “personally to do work”. There was no mutuality of obligation; they were voluntarily undertaking duties as elected officials, with no commitment to any particular amount of work, nor right to pay from the Union. The EAT also noted that Unite lacked sufficient control over them; under the Union rule book, elected officials are afforded a great deal of independence in the way they carry out their duties and are not in a position of subordination to the Union.

  • Were Mr S and Mr C agents of Unite?

Yes. Both men had express authority through the Union rule book to carry out “core union work” on behalf of Unite, such as speaking at local meetings, holding ET Tribunal to be acts of sexual harassment took place in the context of meetings. It did not matter that Unite had not authorised the unlawful conduct. Unite were still vicariously liable for it.

  • Did Unite’s handling of the grievance amount to harassment and discrimination?

Possibly. The Employment Tribunal had not applied the correct tests when it came to harassment and direct discrimination. It was not enough that Unite’s investigating officers failed to deal appropriately with the allegations of sexual harassment by Mr S and Mr C. There had to be something about Unite’s investigating officers’ action, or inaction, which related to sex. This point has been remitted to the ET to consider what was in the minds of the investigating officers at the time – why did the decision makers fail to act, or act as they did?