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The Court of Appeal has upheld an employment tribunal's decision that two workplace union officials were agents of the union for discrimination law purposes and that the union was liable for their discriminatory acts towards a union employee.
For the purposes of the EqA 2010, "anything done by an agent for a principal, with the authority of the principal, must be treated as also done by the principal" (section 109(2), EqA 2010). This is so, regardless of whether the agent's acts were done with the principal's knowledge or approval (section 109(3)). This means that an employer can potentially be liable to its employees for discrimination or harassment carried out by its agent.
However, the tribunal erred in its approach to whether the inadequate investigation of the discrimination by the union itself amounted to direct discrimination or harassment.
The tribunal should have focused on the mental processes of those undertaking the investigation and its failure to do so meant that these claims would have to be remitted. (Unite the Union v Nailard  EWCA Civ 1203.)
Facts of the Case