Unite the Union v Nailard UKEAT/0300/15/BA

The ET was wrong to examine the conduct of the perpetrators, not the decision making process of the employer, when assessing a claim for harassment and direct discrimination by its paid officers.

Ms Nailard worked as a regional officer for Unite the Union ("Unite"). She was bullied and sexually harassed by two workplace union representatives, Mr Saini and Mr Coxhill. Ms Nailard lodged a grievance with Unite, who proposed moving Ms Nailard to another office. Ms Nailard objected to this transfer and subsequently resigned, claiming that she had been constructively dismissed. Ms Nailard brought a claim against Mr Saini and Mr Coxhill for sexual harassment, Unite was vicariously liable as Mr Saini and Mr Coxhill were its agents. In addition, Ms Nailard brought a claim against Unite for harassment and discrimination in its failure to deal with her grievance appropriately.

The ET found in favour of Ms Nailard. In relation to the claim against Unite for harassment and discrimination, the ET concluded that the actions of Mr Saini and Mr Coxhill were related to a protected characteristic, namely sex, and consequently the handling of the entire grievance process was linked to the same unlawful conduct.

However, the EAT found this to be the wrong approach. The sexual harassment and the grievance process should have been considered separately. It was wrong to assume that the decision to transfer Ms Nailard was "tainted" by the conduct of Mr Saini and Mr Coxhill. The case was remitted to the ET for analysis of whether Ms Nailard's sex was the reason for Unite deciding to transfer her.

This is a helpful case for employers because the protected characteristic relating to one incident is not automatically assumed to be the motivation for all decisions flowing from it. However it does not grant complete immunity to employers where a claim is brought for harassment or discrimination in relation to the handling of a grievance process. Where the decisions made by an employer were in fact motivated by a protected characteristic, whether consciously or unconsciously, then a claim for harassment or discrimination will still succeed.