The Court of Appeal considered how far an employer may be liable under the EqA for harassment by third parties.
In Unite the Union v Nailard www.bailii.org elected officers of the union at Heathrow had sexually harassed a paid union officer.
The Court of Appeal upheld the decision that the elected officials were agents of the union so the union was liable for the harassment. The principal will be liable wherever the agent discriminates in the course of carrying out the functions he is authorised to do. More: Who is liable under the EqA>Agents.
Perhaps in case the union officials were held not to be its agents, the claimant also argued that three paid union officers had harassed her and directly discriminated by failing to investigate and take appropriate action against the harassment, and then deciding to transfer her. Under the EqA, to be unlawful harassment their inaction had to be ‘related to’ or ‘because of’ sex (or whichever protected characteristic was relevant).
Though the elected union officials were not ‘third parties’ in a normal sense, the same issues arose as in third party harassment – how far is it a breach of the Equality Act for an employer to fail to deal with harassment of employees by people for whom the employer may not be responsible.
The court said it was not enough that the harassment by the elected officials was related to sex. The tribunal had to consider whether the inaction by the paid officers themselves was related to (or because of) sex. It had to look at whether there was a discriminatory motive on the part of the employer. However, the claimant did succeed on a claim for constructive unfair dismissal because of the employer’s inaction. More: Harassment in the EqA>Employer liability for third party harassment.