Discrimination by agent (not employer)

We report on a case where a union was held to be liable because of the actions of its officials who were actually employed by a third party, Heathrow Airport, not the union.

Background

In this case (Unite Union v. Nailard) Ms Nailard brought a claim that she had been sexually harassed by 2 full-time Unite officials (referred to here as S and C), also employed by Heathrow. Ms Nailard was herself a regional officer, but she was actually employed by Unite, and based at their Heathrow office.

The question for the Appeal Tribunal was therefore whether S and C were “employed” under the broad definition of the Equality Act so that the union could be liable for their actions, or alternatively whether the union could be liable because the 2 officials were acting as the union’s agent.

The EAT held that the definition of employment could not be stretched this far. The union officials had not been engaged by the union personally to do work, and there was no obligation on the union to provide them with any work or to pay them. Therefore there could not be an employment even under the extended definition in the Equality Act.

However the EAT did find that the union could be liable for the actions of the officials because they were acting as its agents. This was because they were authorised to act on the union’s behalf and conducted meetings for them and liaised with their officers. The bullying occurred during the course of these duties, and therefore Unite would be liable as agents.

The union tried to defend the discrimination claim by saying that they had taken reasonable steps to prevent the harassment. The EAT dismissed this in no uncertain terms saying that merely telling their agents “of course you must not do anything against equality law” would not limit liability, but merely spell out the obvious. Whether or not the union would be liable because they failed to take effective action against the union officials has therefore been left to be decided by a further Tribunal.

Implications

This case acts as an important reminder that agents can be liable as well as workers of an organisation. That is, in situations where no work in the normal meaning is being undertaken for money.

It is also a useful reminder of the limits of the “reasonable steps” defence in that mere instructions not to discriminate will not be sufficient to get organisations off the discrimination hook.

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