Unite the Union v Nailard

An elected trade-union officer does not, merely by accepting office under a union rule book, make a contract personally to do work for the union within section 83(2) of the Equality Act 2010. The absence of remuneration, a commitment to perform particular work and subordination is decisive.

However, elected officers may be agents of the union under section 109(2) when acting within their authority in core union business. A principal remains liable where an agent performs authorised functions unlawfully, despite lacking knowledge or approval.

For direct discrimination, and for harassment under section 26, the tribunal must assess the conduct and reasons of each alleged perpetrator. Conduct is not related to sex simply because it responds to earlier sex-related harassment by others.

The claimant was a paid regional officer employed by Unite. The Employment Tribunal found that two elected Heathrow union officers sexually harassed her. It held that they were employees of Unite under the extended definition in section 83(2) of the Equality Act 2010, or alternatively Unite's agents under section 109(2).

The Tribunal also found that paid officers failed adequately to address her complaints and decided to transfer her. It treated those acts as sexual harassment and, alternatively, direct sex discrimination. It upheld constructive unfair dismissal and found the dismissal to be an act of sex discrimination. It rejected a complaint of unjustifiable discipline under the Trade Union and Labour Relations (Consolidation) Act 1992.

Unite appealed and the claimant cross-appealed. The central issues were the status and agency of elected officers, the correct tests for harassment and direct discrimination by paid officers, and the scope of unjustifiable union discipline.

1. Appeal allowed in part; cross-appeal dismissed. The Employment Tribunal erred in holding that the elected officers were employees of the union within section 83(2) of the Equality Act 2010. A union rule book is ordinarily the contract of membership, but election to office did not create an agreement personally to work for the union. The rule book provided no right to remuneration, no commitment to perform a particular amount of work, and no relationship of subordination.

2. The Tribunal was nevertheless entitled to find that the elected officers were Unite's agents under section 109(2). Their conduct occurred while undertaking core union functions, including meetings and correspondence concerning negotiations with the employer. They acted within the general authority conferred by their office. Their harassment remained attributable to Unite even though it was neither authorised in its unlawful form nor known to Unite in advance.

3. The findings that paid officers directly discriminated against the claimant could not stand. Unless the protected characteristic is inherent in the treatment itself, the Tribunal must identify the reason for each decision-maker's conduct, including that person's conscious or unconscious mental processes. It could not treat the decisions as because of sex merely because they were tainted by earlier harassment committed by others.

4. The harassment findings against the paid officers were also vitiated. Under section 26, the inquiry is whether the alleged perpetrator's own conduct or inaction was related to sex. It is insufficient that the earlier harassment to which the person failed to respond was sex-related. Inaction may amount to unwanted conduct, and a transfer may worsen an existing hostile environment, but the statutory connection must be established in relation to the alleged perpetrator's own conduct.

5. The claims concerning direct discrimination and harassment by paid officers were remitted to the same Tribunal, subject to submissions. The finding that the constructive dismissal was an act of sex discrimination remained because the elected officers' attributable harassment was an effective cause of the resignation. Section 64(2)(f) of the Trade Union and Labour Relations (Consolidation) Act 1992 does not concern decisions about the employment of a paid union officer.

• Employment Appeal Tribunal: Allowed Unite's appeal in part, set aside the finding that elected officers were employees, and remitted the claims concerning paid officers' harassment and direct discrimination.
• Employment Tribunal, Watford: By a judgment dated 1 July 2015, upheld aspects of the claimant's claims, including constructive unfair dismissal and liability for harassment.