Veale Wasborough Vizards
10 OCT 2016
Are workplace union officials employees or agents of the union?
Associate, Veale Wasbrough Vizards
In the case of Unite the Union v Nailard, the Employment Appeal Tribunal has held that workplace union officials are agents, but not employees, of the union for the purposes of discrimination law.
On the facts it found that the union was liable for the discriminatory acts of the officials.
The Equality Act 2010 (EqA) states that 'anything done by an agent for a principal, with the authority of the principal, must be treated as also done by the principal'. Therefore, an employer can potentially be liable for discrimination carried out by an agent, irrespective of whether the agent's actions are done with the principal's knowledge or approval.
Ms Nailard was employed by Unite the Union as a regional officer. Her role involved liaising with officials who had been elected as workplace union representatives.
Mr Saini and Mr Coxhill were full time workplace union officials based at Heathrow Airport Limited (HAL). Despite the fact they undertook full time union duties they remained employed, and paid, by HAL.
Ms Nailard was sexually harassed and bullied by Mr Saini and Mr Coxhill. In March 2014, she lodged a grievance regarding the discriminatory behaviour.
Ms Nailard subsequently resigned and brought a claim in the Employment Tribunal for constructive dismissal and sexual harassment in relation to the acts of Mr Saini and Mr Coxhill. She also brought claims of harassment and discrimination in relation to Unite's failure to deal with her complaints appropriately.
Employment Tribunal (ET)
The ET found that Mr Saini and Mr Coxhill were both employees and agents of Unite. Accordingly, it determined that Unite was liable for the discrimination of Ms Nailard by Mr Saini and Mr Coxhill.
The ET also found that the way in which Unite managed Ms Nailard's grievance related to her sex and that, in itself, amounted to harassment and sex discrimination.
Unite appealed the decision of the ET on the basis that Mr Saini and Mr Coxhill were neither employees nor agents of Unite, and that the management of Ms Nailard's grievance did not amount to harassment or discrimination.
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Employment Appeal Tribunal (EAT)
The EAT held that Mr Saini and Mr Coxhill were not employees of Unite under the relatively wide definition used in the EqA - neither man had a contract personally to do work.
The EAT also allowed the appeal in relation to Unite's handling of the grievance, stating that the ET should have focused on the 'mental processes' of those involved in the management of the grievance. This issue was remitted for consideration by a fresh tribunal.
However, the EAT upheld the ET's finding that Mr Saini and Mr Coxhill were agents of Unite and, as such, Unite was responsible for the actions of its agents carried out in the course of their duties.
The decision is not surprising, but is a useful reminder to all employers who have individuals acting as agents. It is sensible to ensure that any agency-type arrangement, including arrangements for the release or secondment of staff to undertake union duties, is recorded in writing and sets out the basis of the arrangement and the obligations of the parties.
Employers should also be aware of potential discrimination claims in relation to the handling of grievances. To help to minimise risks of any such claim, employers should consider providing training to all staff, particularly those involved in managing grievance and disciplinary processes and should also ensure they have appropriate and up to date polices in place.