The Employment Appeal Tribunal has held that workplace union officials were not employees of the union but were its agents for discrimination law purposes.
This case concerned two workplace union officials. Whilst they worked full time as workplace union officials they were paid their normal salary by Heathrow Airport rather than the union.
They bullied and sexually harassed their regional officer, who was employed by the union, which resulted in her raising a grievance. In response the union decided to propose transferring her to another office, to take her away from the alleged perpetrators. She resigned claiming constructive dismissal and also brought claims for sexual harassment in relation to the acts of the two union officials, as well as claims of harassment and discrimination in relation to the union’s failure to respond appropriately to her grievance.
A tribunal upheld her claims and in doing so held that the two union officials were employees of the union meaning that the union was liable for their discriminatory actions. Alternatively, the tribunal said, they were agents of the union. The tribunal also said that the handling of the grievance constituted sex discrimination and harassment.
The union appealed arguing that the two officials were not employees or agents and that the handling of the grievance did not amount to harassment and discrimination.
The Employment Appeal Tribunal said that the union officials were not employees of the union for discrimination law purposes because they were not required to undertake work personally for the union and were not paid by the union. However, it went on to say that they were agents of the union which meant that the union could be liable for their discriminatory acts.
The tribunal, it said, had been entitled to find the union liable for their acts but the tribunal should have focused on the mental processes of those investigating the grievance rather than on focusing on the adequacy of the investigation and the case has been remitted on this point.
Case reference: Unite the Union v Nailard