The update below comes courtesty of PLC, an employment law resource I subscribe to.

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 [2018] EWCA Civ 1203.)

Facts of the Case

Ms Nailard was employed as a regional officer by Unite the Union (Unite). Her line manager was Mr King, a senior regional officer, and above him in the hierarchy was Mr Kavanagh, regional secretary.
As part of her role liaising with elected union officials, Ms Nailard dealt with Mr Saini (a convenor) and Mr Coxhill (a branch chair) at Heathrow Airports Limited (HAL). By agreement between Unite and HAL, Mr Saini and Mr Coxhill carried out union duties full-time while remaining employed by HAL.
Ms Nailard lodged a grievance with Unite in respect of bullying and harassment by Mr Saini and Mr Coxhill. Following an investigation, Mr Kavanagh proposed transferring Ms Nailard to another office, to take her out of contact with the alleged perpetrators.
Ms Nailard resigned and brought several claims which were upheld by an employment tribunal. These included claims for sexual harassment in relation to the acts of Mr Saini and Mr Coxhill, and claims of harassment and discrimination in relation to Unite's failure to respond appropriately to her complaints. The tribunal held, in particular, that:
  • Mr Saini and Mr Coxhill were employees of Unite as defined by section 83(2) of the EqA 2010 and Unite was liable for their discriminatory actions.
  • In the alternative, Mr Saini and Mr Coxhill were agents of Unite and Unite was liable under section 109(2) of the EqA 2010.
  • Unite's handling of Ms Nailard's grievance, including the decision to transfer her, was related to sex and constituted harassment and direct discrimination.
Unite appealed to the EAT.
The EAT overturned the tribunal's finding that Mr Saini and Mr Coxhill were employees. It upheld the alternative finding that they were Unite's agents and that Unite was liable for their conduct. It allowed the appeal in relation to Unite's handling of the grievance holding that the tribunal had misdirected itself as to the necessary ingredients for liability and remitted this part of the claim for rehearing.  Unite appealed to the Court of Appeal against the finding that it was liable for the conduct of Mr Saini and Mr Coxhill as its agents. Ms Nailard cross-appealed against the finding in relation to Unite's handling of her grievance.

Decision

The Court of Appeal (Underhill LJ giving the leading judgment with which Moylan LJ agreed) dismissed both the appeal and cross-appeal.

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Replies

  • Thanks of sharing this Sarah. Very useful.

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