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The Court of Appeal has held in Unite the Union v Nailard that two elected workplace union officials were agents of the union, and that the union was therefore liable under the Equality Act 2010 for their discriminatory acts towards a union employee.

The claimant was elected as a regional officer for the union at its Heathrow office, and had responsibility for union members at HA Ltd as well as other workplaces. In addition to employees, the union had locally elected officials who were employed by the airport. Two elected officials at HA Ltd's workplace, S and C were employed and paid by HA Ltd, but carried out full-time union duties. Whilst carrying out her union work, the claimant was bullied and harassed by S and C. The outcome of a formal grievance about this behaviour was a proposal by the union to transfer the claimant to an alternative site away from Heathrow. She protested and resigned bringing claims of sexual harassment, based on S and C's conduct towards her, and harassment and discrimination based on the union's failure to undertake an adequate investigation of her complaints.

At first instance the tribunal upheld all of her claims, holding that S and C were in the union's "employment" and so the union was liable under section 109(1) EqA 2010 for them as employees. In the alternative it held that they were the union's agents and so the union would be liable under section 109(2). The EAT disagreed that S and C were employees of the union, but agreed that they were the union's agents. The Court of Appeal agreed that S and C were agents. It rejected the argument that S and C could not act as agents towards the claimant because she was not a third party but, like them, a union representative towards whom S and C required no authority to act. The Court concluded that there was no justification for limiting the scope of principal-agent liability as suggested by the union, pointing out that although an agent may stand in the shoes of a principal in dealing with A, if while wearing them he treads on B's toes he should be liable to B "just as much as if it had been A's toes that were crushed".

Take note: Following the decision in Nailard if a discriminator is acting on behalf of an organisation (the principal) as an agent, the principal will be liable for any discriminatory acts even if these are not perpetrated against the third party for whom the agent is acting on behalf of the principal. In other words the test is equivalent to the "course of employment" test governing the liability of employers for the acts of their employees.

This article is taken from HR Law - June 2018.