Elected Union Officials were agents under the Equality Act

The Employment Appeal Tribunal has decided that two elected workplace union officials, despite not being the union’s employees, were its agents and therefore the union could be held liable for their acts of discrimination against an employee.

The case of Unite the Union v Nailard, concerned the sexual harassment of a female union employee by two elected male union officials. The officials were actually employed by Heathrow Airport Ltd, which had an agreement with Unite that they could work full time on union duties. The two officials were authorised to act on the union’s behalf by holding branch meetings, representing members and liaising with paid officers of the union, including the claimant. The harassment and bullying were found to have occurred within the course of these duties. Unite’s defence that they could not be liable for the officers’ acts of discrimination as they were contrary to union policy was rejected.

The case reinforces that under the Equality Act 2010, a business can be liable for the discriminatory acts of not just its employees but also anyone acting as its agent with its authority, where the agent discriminates in the course of carrying out the functions they are authorised to do. This could include consultants, recruitment agencies or agency workers, contractors or their employees.

A business cannot avoid liability by merely informing individuals, who carry out tasks and functions on its behalf, that they must not do anything against equality law. To minimise the risk, businesses should consider extending equality and diversity training to those who could be considered their agent.

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