This week’s Unite Policy Conference

Image of UPC2018 leaflet

This weekend delegates from across the UK, Ireland and Gibraltar will gather in Brighton for Unite’s 5th Policy Conference. The final agenda suggests there should be some lively and important debates.

Unite Rank and File has produced a leaflet highlighting some of the key issues. If you’re at conference, please help distribute it.

Image of UPC2018 leafletAnd if you haven’t yet signed up for Unite Rank & File, please do.

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.

Act now to avoid exclusion from Unite structures for three years

Most of Unite’s structures run on a three-year cycle. Elections for workplace reps and branch officers should now be complete. But unless you act now you could be excluded from the rest of the union’s structures for the next three years.

No Entry sign on a door
Photo: https://www.flickr.com/photos/ell-r-brown

Between 14 May and 1 June 2018 conferences will be taking place in every region to elect Regional Industrial Sector Committees (RISCs), Regional Equality Committees (REqCs), Area Activists Committees (AACs) and Regional Labour Party Liaison Committees (RLPLCs). This is a crucial step – these committees then elect people onto nearly all the other structures including National Industrial Sector Committees (NISCs), National Equality Committees (NEqCs), Regional Committees (RCs) and the National Labour Party Liaison Committee (NLPLC). They are also part of the route for election to industrial sector, policy and rules conferences, TUC conference and Labour Party conferences.

So if you don’t get on one of these committees (the RISC is particularly important for working members) you are likely to be excluded from most of Unite’s structures for three years, which can be a significant barrier to finding out what’s going on and having your say.

If you haven’t had an invitation to the conferences you are entitled to attend, you should urgently contact your Unite Regional Office. Note that to attend most of the conferences you must be an “accountable representative of workers” under Rule 6. If you want to stand for any of the committees, you should submit a nomination in advance from a branch of workplace – the relevant form should be provided with your invitation. If you don’t manage to do this, there’s still a significant chance you could stand for election at the conference itself, if (as is all too common) insufficient nominations have been received by the deadline.

It is important that you elect people who are actually going to turn up most of the time. The March 2018 Executive Council (EC) meeting clarified that the quorum for RISCs and AACs is 50% + 1 of those elected, so vacant seats don’t count against you as much as people elected who don’t show up. Vacancies can be filled during the three-year term but you often have to push for this. The EC also decided that if membership of a RISC or AAC should fall below five people, it will be linked with another Committee so that it can continue to function.

It’s normal for the relevant Committee to meet immediately after the Conference that elected it, and to elect its chair and delegates to other parts of the union structure.

More information about Unite Rules and a list of the Conferences and the Constitutional Timetable is available via the links.