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.

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