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Unite the Union v Nailard

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Last updated 14th September 2019.

The Court of Appeal held that failure of managers to do enough to prevent harassment by a third party was only a breach of the Equality Act if the manager had a discriminatory motivation. Howerer in the present case the union was liable anyway because the harassment was by officials who were its agents. Also the claim for constuctive dismissal succeeded.

Court of Appeal, 2018 www.bailii.org/ew/cases/EWCA/Civ/2018/1203.html

Facts

An employee of the union suffered sexual harassment by elected officers who were not employees.

Held by the Court of Appeal: The union was liable under the Equality Act for the harassment but its officials, since they were the union’s agents. However the failure by her managers (who were employees of the union) to do enough to prevent the harassment was not necessarily unlawful discrimination or harassment.

Liability for officials as agents of the union

She succeeded in her claim that the union was liable for the acts of its elected officers as agents (see Who is liable under the Equality Act?>Agents).

Whether liability for failure to prevent harassment was a breach of the Equality Act

Here the claimant was able to claim compensation on the basis that the officials were agents of the union (above). However, perhaps in case that argument failed, she also claimed that the union was liable for harassment or direct discrimination in that her managers, who were union employees, failed to act sufficiently firmly and decisively against the harassment, despite her complaints about it. (The union just proposed to transfer her elsewhere.) On this point the case is important as to whether the employer is liable if it fails to take steps against harassment by third parties such as customers or suppliers who are not the agents of the employer.

The Court of Appeal said the harassment by the union officers was related to sex, but this did not mean the managers’ failure take action against it was related to (or because of) sex. The tribunal had to look at the motivation of the managers. The employer, and indeed the individual decision-taker, would be liable for harassment or direct discrimination under the Equality Act if the mental processes of the decision-taker(s) in failing to act were found (with the assistance of the shift in burden of proof if necessary) to have been significantly influenced, consciously or unconsciously, by the relevant protected characteristic.

An important step in the court reaching that conclusion was its rejection of the argument that Parliament intended to include liability for third party harassment when it changed the definition of (sexual) harassment from “on the ground of her sex” (requiring a “causative” relationship) to “related to” sex (an “associative” relationship). This change was in response to the High Court decision in Equal Opportunities Commission v Secretary of State for Trade & Industry, 2007 (see from para 55 of the Nailard judgment) in order to include various situtions which were required to be covered by the relevant EU directive.

In Nailard the Court of Appeal said it was inclined to doubt whether change in wording to “related to” which the EOC case required had been strictly necessary. The distinction made by the court in 2007 between an “associative” and a “causative” relationship may not be essentially different from the two types of discrimination expounded in the Amnesty case (inherent in the act, or based on mental processes). For example where a speaker uses overtly sexist language in a mixed audience, the link with the protected characteristic is in the words themselves and does not depend on his motivation. However the Court of Appeal did not have to decide on this.

The Court of Appeal did decided that mere use of the formula “related to” is not sufficient to convey an intention that employers who are themselves innocent of any discriminatory motivation should be liable for the discriminatory acts of third parties, even if they could have prevented them. The “associative” effect of the phrase “related to” is more naturally applied only to the case where the discriminatory conduct is the employer’s own, as it was in each of three examples given in the EOC case. Negligent failure to prevent another’s discriminatory acts is a very different kind of animal from liability for one’s own: it requires careful definition, and the Court of Appeal would expect it to be covered by explicit provision. The court would also be uneasy about a situation where such liability was incurred not only by the employer but also by any individual employee who might be implicated in the failure to afford adequate protection. (The court may have had in mind an example it quoted from an earlier case: if the manager had had a heart attack which hospitalised him immediately after receiving the complaint from the claimant, and that was in truth the reason for his not dealing with the complaint, then on the claimant’s argument he would nonetheless have to be condemned and his employer with him as having acted in a discriminatory manner.)

Accordingly, as set out above, Equality Act liability in this type of case depends on whether there is a discriminatory motivation.

Constructive dismissal

She also claimed constructive dismissal, having resigned when the employer proposed to transfer her. The employment tribunal upheld this claim and it was not appealed (EAT decision (bailii.org) at para 10). The tribunal found the union’s failure to deal firmly and decisively with the officers concerned was a breach of the implied term of trust and confidence; it said that the decision to transfer her was the “last straw”. Quite apart from the Equality Act, the claimant was therefore entitled to compensation for unfair dismissal.

My comment

This case limits the circumstances in which an employer is liable under the Equality Act for harassment by third parties. However other types of claim may be available, such as constructive dismissal (as was successfully claimed in this case) if the claimant has left, or a claim under the Protection from Harassment Act 1997. See Harassment of employees>Harassment by third parties, such as customers or suppliers.

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