Should Unite seek immunity for discrimination by lay union officials against members and employees?

The fight against discrimination and for equality is a core part of what any decent union activist does. So it might come as a surprise to many who haven’t been following the case that Unite went to the Court of Appeal (and may go to the Supreme Court) making an argument that would reduce members’ protection from discrimination.

Scales of justice

The case centres on Sally Nailard, who was a Regional Officer employed by the union. She was subject to what her Regional Secretary acknowledged was

“a sickening and orchestrated campaign of harassment … [including] bullying and even sexual harassment”

by two branch officers. The courts supported Sally Nailard’s view that the union

“failed to deal with it firmly or decisively”.

In an organisation with over a million members, thousands of lay activists and hundreds of employees there will, from time to time, be cases where people behave wrongly. While the union can and should take steps to minimise this, for example through education and clear policy statements, this cannot prevent cases arising entirely when our union exists within a society riddled with power inequalities, prejudice and discrimination. What everyone should be entitled to expect is that our union responds supportively and effectively when such incidents occur.

When someone has been treated as badly as Unite and the courts accept that Sally Nailard was, you would expect the union to do what it can to make amends to the individual and try to learn lessons to reduce the risk of recurrence. An absolutely compelling reason would be needed to drag the survivor of bullying and harassment through a gruelling series of appeals. Yet that is what has happened.

You can read the Court of Appeal judgement here, and some legal commentary on it here.

In the appeal, Unite wasn’t contesting that Sally Nailard had been treated very badly by two branch officers, or that they had responded inadequately to her complaint. The appeal unsuccessfully sought to use a legal technicality to deny liability under the Equality Act 2010.

We all understand that an employer has liability for discrimination carried out by its employees. The law has jargon for when someone who is not an employee can act on behalf of another person or organisation, with the power to change their legal relationship with third parties, without being an employee. The “agent” acts on behalf of the “principal”. The law treats lay reps and branch officers as “agents” acting on behalf of the union (the “principal”). Lay reps can enter into agreements with employers that have legal standing.

This view of lay reps as agents of the union is not new law, being well established in Heatons Transport (St Helens) Ltd v Transport and General Workers’ Union [1973]. But it certainly isn’t how union activists see the relationship – we see ourselves as acting on behalf of, and accountable to, members, not on behalf of the union as a top-down legal entity.

Section 109 of the Equality Act 2010 makes clear that principals are liable for discrimination by their agents in broadly the same way that employers are liable for discrimination by their employees.

The waters in the case were slightly muddied by Unite highlighting an anomaly in the Equality Act which does not provide “principals” with the same defence as “employers” that they “took all reasonable steps to prevent” the discriminatory Act. However, this is far less significant than it appears. A “learned friend” explains that the courts don’t in practice allow this defence for employers either, because if it was given its literal meaning the effect would be that no large employer with an HR function and policies would ever be found liable for discrimination – an outcome so unjust that even our courts wouldn’t accept it.

But even if this inconsistency in the legislation had been material, it still wouldn’t justify the appeal, which was primarily on the obscure point of whether the liability of the union for discrimination carried out by lay officials should protect employees, other activists, and members; or be restricted to only protect third parties such as employers!

This blog from Devereaux Chambers explains their view of the judgement:

“The Court of Appeal undoubtedly came to the correct conclusion on this issue: the logical extension of Unite’s argument is that a union would not be liable if its lay officials discriminated against its members they may be representing. However, a union would certainly be liable for such conduct under s.57 EqA if the lay officials had been its employees. Parliament cannot have intended such a different result, particularly as most trade union members deal primarily with lay officials, rather than employed officials.”

It can’t be right that Unite continues to seek a blanket immunity for lay officials who discriminate against Unite members, activists and employees, denying them protection available to employer representatives or reps from other unions.

It is well known that there have been significant issues in relation to treatment of female Unite officers, and that the report into this showed that a large proportion of their experiences of sexism was from lay members rather than union employees.

Unite should not drag Sally Nailard, who the union accepts was treated appallingly, through yet another appeal in an attempt to deny Unite members, activists and employees legal protection from discrimination by lay officials. Unite should apologise, try to agree a resolution with Sally Nailard and step up equality education for all activists. Not only would this help us reduce the incidence of sexual harassment within the union, it would help our activists support the huge number of women members who suffer sexual harassment in their workplaces.

1 thought on “Should Unite seek immunity for discrimination by lay union officials against members and employees?”

  1. I am a close friend of Sally Nailard and I concur with all you have said above. Unite’s treatment of her has been appalling. Whilst employed at Unite the 7th floor chose to ignore her complaints and later the grievances she raised. Yes an investigation was instigated into her claims but Peter Hughes who conducted it failed to actually deliver his full findings to either Sally or her Regional Secretary Peter Kavanagh. Instead Unite or rather the GS decided to remove her from the office at Heathrow on the basis that it would be too distressing for her to see those she had accused of bullying, intimidation, victimisation and discrimination when they attended meetings at Unites Heathrow office. Amazing that the three previous male officers who had also been removed from the toxic environment that was and is being the officer for Heathrow Airports limited were allowed to stay at Heathrow but Sally was, as a woman, deemed to fragile! Blatant discrimination.

    Sally resigned and has won at ET, EAT and at the Court of Appeal. What is most appalling is that Sally’s legal representatives applied to the Court of Appeal to have the case heard without costs being awarded to the losing side. This is not uncommon when a case such as Sally’s has been successful at ET and EAT, where the successful applicant is unwillingly dragged into yet another appeal hearing. What did Unite do? They wrote to the Court of Appeal to object to a cost neutral hearing, their reason? Sally Nailard owns her own ‘substantial’ property (not true) that could in the event of her losing be sold to pay towards Unite’s costs!! No concern from Unite of the fact that Sally is a single parent with at that time. Teenage daughter still in education. Fortunately the Court of Appeal rejected Unite’s submissions.

    And now some 4 years, 5 months later we await the decision of the Supreme Court as to whether or not they will accept Unite’s third Appeal to a higher court. During which time Sally spent 2 years 5 months unemployed and living on benefits.

    How much have Unite spent on fighting this case? It has to be at least £250,000, why did they just not settle the claim after the ET? Had they done so the judgement would not have been binding, but no they chose to pursue this case to the Court of Appeal and now to the Supreme Court. If they had dealt with the bullies this would never have happened.

    Unite are a disgrace, how can a Trade Union behave in this way? Sally has stood up not just for herself but for all Union officers not just those in Unite but across the trade union movement. Sally’s case features heavily in the Parliamentary Select Committee enquiry into third party liability on sexual harassment, an enquiry that Unite and Diana Holland had the nerve and temerity to participate it, talk about hypocrisy, Sally Nailard has changed the law on third party discrimination in this country and paid a terrible personal price for doing so, you are right that Unite should seek to settle this claim but they will not.

    So who are the biggest bullies in this case? Certainly not those sacked by Heathrow Airports Ltd. Unite as a union are a disgrace, they publically promote equality and diversity whilst privately doing the opposite. To actually submit a paper to the Select committee for Women and Equalities in which they purport to condon discrimination, harassment etc holds no more wait than Harvey Weinstein saying he he didn’t sexual harass movie stars.

    In closing one cannot help but ask where are Unite’s Executive Committee on this? Clearly on the side of the GS, shame on all of you,

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