In Unite the Union v Nailard UKEAT/0300/15, the Employment Appeal Tribunal considered whether workplace union representatives were employees or agents of the union and whether the union could be vicariously liable for their discriminatory acts.

Ms Nailard was employed by Unite the Union (Unite) as a regional officer. Her role included liaising with workplace union representatives, including Mr Coxhill and Mr Saini, who were both employed and paid by Heathrow Airport Ltd but worked full-time as workplace union officials on behalf of Unite.

Mr Coxhill and Mr Saini bullied and sexually harassed Ms Nailard over a period of time during meetings with her. Ms Nailard raised a grievance with Unite concerning her treatment, which concluded that Ms Nailard had been bullied and sexually harassed. Despite this outcome, Unite did not take any substantive action against Mr Coxhill or Mr Saini and instead concluded that Ms Nailard should be transferred away from Heathrow so that she had no further contact with Mr Coxhill or Mr Saini. Ms Nailard resigned and brought an employment tribunal (ET) claim for constructive dismissal against Unite, on the grounds that Unite had failed to properly deal with the bullying and harassment. Ms Nailard also brought claims of harassment and discrimination against Unite on the same grounds and also on the grounds that it was vicariously liable for the actions of Mr Saini and Mr Coxhill.

The Equality Act 2010 provides that an employer will be vicariously liable for any discriminatory acts carried out by an employee in the course of their employment and/or that a principal will be vicariously liable for any discriminatory acts by its agent, where the agent has the authority of the principal to carry out the act.

An employer/principal will have a defence in this situation where it can show that it took all reasonable steps to prevent the discriminatory act in question. However, the fact that discrimination takes place without the knowledge of the employer or principal is not a defence.

Therefore, the key question in cases involving vicarious liability of an employer or principal will often be whether an employee was acting 'in the course of their employment' (or whether an agent was carrying out an act with the authority of their principal) when they carried out a discriminatory act. This is a question of fact for the ET to decide, which will usually focus on the connection of the act with the perpetrator's employment/agency and whether the discrimination took place while they were carrying out an activity for the benefit of their employer/principal.

The ET upheld all of Ms Nailard's claims. In particular, it held that Mr Coxhill and Mr Saini's actions constituted sex discrimination and harassment and that Unite was vicariously liable for their actions, on the grounds that they were employees of the union. The ET said that, even if Mr Coxhill and Mr Saini were not employees, they were certainly agents of Unite and it would still be vicariously liable for their actions.

The ET considered that the majority of the discriminatory acts carried out by the two men took place during workplace meetings they attended in their capacity as union officials, during which they were acting in the course of their employment with Unite (or alternatively, if they were not employees, they were carrying out a function assigned to them by Unite and were therefore acting as Unite's agents).

Unite appealed to the Employment Appeal Tribunal (EAT), arguing that Mr Coxhill and Mr Saini were neither their agents nor their employees and therefore the union was not vicariously liable for their actions.

The EAT held that Mr Coxhill and Mr Saini were not Unite's employees but found that they were agents and that Unite was vicariously liable for their actions.

The EAT said that the men could not be employees, as there was no contract to do work personally for Unite and the union rule book (which the ET had found to create an employer-employee relationship) did not amount to this.

However, the EAT concluded that the men were clearly agents of Unite, as they were authorised to speak at workplace meetings on behalf of the union and liaise with officers employed directly by Unite, such as Ms Nailard, and it was during these activities that the discriminatory conduct occurred. Consequently, the discriminatory behaviour had taken place while they were carrying out functions on Unite's behalf. It was no defence that Unite had not authorised the en to engage in illegal conduct.

The EAT's decision as to the employment status of the union officials in this case is sensible and it would have been surprising if Unite had been found to be their employer, given that they had a contract with and received all of their pay from Heathrow Airport Ltd and that the union rule book did not contain the provisions required to create an employment contract.

Equally unsurprising was the EAT's decision that the union officials were agents of the union and that it was responsible for their discriminatory actions.

This decision serves as a useful reminder to employers that they will usually be vicariously liable for any discriminatory acts carried out both by their employees and any agents, where the employee or agent is carrying out activities for the benefit of the employer or principal.

It is therefore important for employers to put appropriate measures in place to prevent discrimination by their agents, as well as their employees, including making workplace policies and training available to agents.