Sexual Harassment

In Unite the Union v Nailard, Ms Nailard was employed by the union as a regional officer. She was obliged to work with elected branch officials of the union who subjected her to bullying behaviour and sexual harassment. Her internal complaints were not dealt with adequately and she resigned when she was simply told that she would be transferred to a different branch.

The employment tribunal upheld her constructive dismissal claim and also her claim of sexual harassment in the way in which she was treated by the branch officials. For this claim to stand up however, the employment tribunal had to find that the union was vicariously liable for the branch officials’ actions. It did so on two separate grounds. Firstly, it held that the branch officials were actually employees of the union – on the basis that they were obliged to work for the union under the terms of the rule book. The EAT rejected this idea. A union official elected under the terms of the rule book did not become contractually obliged to perform work for the union – and was certainly not entitled to any payment.

However, the EAT did uphold the second basis on which the employment tribunal found the union to be liable. The branch officials were not employed by the union, but they were its agents. Under the Equality Act 2010, an employer is also liable for the actions of agents acting on its behalf and ‘with its authority’. The union strongly denied that the union officials were acting with its authority when they subjected Ms Nailard to sexual harassment. However, the EAT noted that the harassment consisted of aggressive and offensive behaviour in the course of their duties as officials. They were, therefore, acting within the scope of the authority granted to them under the rule book. It followed that the union was indeed liable for the sexual harassment.

For further information contact an employment law specialist in our legal team on 01227 763939.