Unite the Union v Sally Nailard
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moylan,Lord Justice Underhill |
| Judgment Date | 24 May 2018 |
| Neutral Citation | [2018] EWCA Civ 1203 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2016/3912, A2/2016/4432 |
| Date | 24 May 2018 |
[2018] EWCA Civ 1203
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM the Employment Appeal Tribunal
HH Judge Richardson and lay members
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Underhill
and
Lord Justice Moylan
Case No: A2/2016/3912, A2/2016/4432
Mr Oliver Segal QC and Ms Katharine Newton (instructed by Thompsons Solicitors LLP) for the Appellant
Mr Bruce Carr QC and Mr James Wynne (instructed by Richard Slade & Company) for the Respondent
Hearing date: 25 th January 2018
Written submissions: 31 st January 2018
Judgment Approved
INTRODUCTION
This is an appeal and cross-appeal against a decision of the Employment Appeal Tribunal (HH Judge Richardson, Mr Peter Gammon CBE and Mrs Gillian Smith MBE) handed down on 27 September 2016. By its decision the EAT allowed in part an appeal against the decision of an Employment Tribunal sitting at Watford (chaired by Employment Judge Manley) dated 1 July 2015. In order to explain the issues I need to summarise the essential factual background (which I can take almost verbatim from Judge Richardson's excellent judgment) and the procedural history. The Claimant in the original proceedings is the Respondent before us, but it will be clearer if I refer to her as the Claimant.
The Claimant was employed by the Appellant trade union (“the Union”) as a regional officer with effect from 6 June 2012. In January 2013 she transferred to its office at Heathrow. She became a regional officer in respect of Heathrow Airports Ltd (“HAL”) within the Union's London and Eastern Region. Her immediate line manager was Mr Wayne King, the senior regional officer. Senior to him were Mr Kavanagh, the regional secretary, and Mr Murray, the Union's chief of staff. These were all employees of the Union.
The Union's rule book – in effect its constitution – makes provision for local branches, generally based upon a workplace. They are to have elected officials, including a chair, a treasurer, an equality officer and a secretary. The rule book also provides for shop stewards and workplace representatives to be elected within a workplace. Two such officials within Heathrow were Mr Saini, a convenor, and Mr Coxhill, a branch chair: I will sometimes in this judgment refer to them for short as “the lay officials”. By agreement between the Union and HAL they carried out union duties full-time while remaining employed by HAL.
There was an unfortunate history of conflict between the employed officers of the Union and the locally elected officers at Heathrow. The Claimant was the fourth employed officer in respect of HAL in as many years. Mr Saini and Mr Coxhill, as the ET found, treated the Claimant in a bullying and offensive manner which amounted to harassment related to her sex within the meaning of section 26 of the Equality Act 2010. I need not give the details.
The Claimant complained to the Union about the conduct of Mr Saini and Mr Coxhill, eventually presenting a formal grievance on 17 March 2014. Mr Murray asked Mr Hughes, another employed official of the Union, to carry out an investigation. The ET found that although the Union – in particular Mr Hughes, Mr Murray and later Mr Kavanagh (to whom I will sometimes refer for short as “the employed officials”) – acknowledged that the Claimant was, as Mr Kavanagh put it in a contemporary e-mail, subjected to “a sickening and orchestrated campaign of harassment … [including] bullying and even sexual harassment”, it failed to deal with it firmly or decisively. For convenience, I will refer to that failure as their “inaction”, though that label slightly overstates the position since the Union did take some steps, albeit inadequate.
By August 2014 Mr Kavanagh was involved. He decided to transfer the Claimant away from Heathrow. At a meeting on 1 August he offered her a transfer to Southampton or alternatively to offices in the London area. She protested, and on 4 August she resigned with immediate effect. I will return later to the ET's findings about the reasons for Mr Kavanagh's decision.
For the purpose of the analysis that follows I will refer to the original conduct on the part of Mr Saini and Mr Coxhill as “the lay officials' conduct”, and to the subsequent conduct of Mr Hughes, Mr Murray and Mr Kavanagh – that is, their inaction followed by the decision to transfer her – as “the employed officials' conduct”.
The Claimant brought proceedings against the Union in the ET. Not all her claims are now live. Those that are can be summarised as follows:
(1) Sex Discrimination. The Claimant alleged that both the lay officials' conduct and the employed officials' conduct constituted direct discrimination because of her sex contrary to section 39 (2) of the 2010 Act. She said that the Union was liable for the acts of the various individuals under section 109 of the Act, which governs the liability of employers and principals for the acts of their employees and agents. That was obviously the case as regards the employed officials since they were employed by the Union, and so fell within section 109 (1); but she said that Mr Saini and Mr Coxhill were also its employees, within the extended definition in section 83 of the Act, alternatively that they were its agents and so fell within section 109 (2).
(2) Harassment. In the alternative the Claimant relied on the same acts as constituting unlawful harassment related to her sex contrary to section 40 (read with section 26) of the 2010 Act.
I should add for completeness that the Claimant also alleged that her resignation was in response to the conduct of both the lay and the employed officials, which amounted to a repudiatory breach of contract, and accordingly that she had been constructively dismissed and that that dismissal was unfair. She also claimed that her resignation amounted to a constructive dismissal and that this was a distinct act of sex discrimination.
The claim was heard over a number of days in April and May 2015. The ET's decision was, as I have said, handed down on 1 July 2015. The Reasons are full and carefully structured. I should note at this stage that the ET proceeded by reference to an agreed list of no fewer than 31 issues. At paras. 11–14 of the Reasons it found the facts. At paras. 15–37 it set out the applicable law, an exercise which to some extent incorporated the parties' submissions. It completed its summary of the submissions at paras. 38–42. At paras. 43–132 it considered and reached conclusions on each of the issues. At paras. 133–139 it gave an overall summary of its conclusions.
The findings with which we are concerned can be summarised as follows:
Harassment (Issues 11–15)
(1) The lay officials' conduct. The ET found that Mr Saini and Mr Coxhill had harassed the Claimant within the meaning of section 26. It found that the Union was liable for that harassment because the lay officials were indeed “employed” by it within the meaning of the extended definition, but it found in the alternative that they were its agents within the meaning of section 109 (2).
(2) The employed officials' conduct. It found that the employed officials' conduct also amounted to harassment.
Discrimination (Issues 8–10)
(3) The ET found that both the lay officials' and employed officials' conduct would have constituted unlawful sex discrimination contrary to section 39 (2) (d) of the Act, which covers discriminatory “detriments”; but that it did not do so because of the “anti-overlap” provision of section 212 (1), which provides that “‘detriment’ does not … include conduct which amounts to harassment” 1.
It upheld the claims of unfair and discriminatory dismissal.
The Union appealed to the EAT. It did not challenge the finding of unfair dismissal. As regards the findings of harassment related to sex:
(1) The lay officials' conduct. It did not challenge the finding that Mr Saini and Mr Coxhill had harassed the Claimant within the meaning of section 26 of the 2010 Act. But it challenged the finding that it was liable for that conduct whether on the basis that they were its employees or its agents.
(2) The employed officials' conduct. It challenged the finding that the conduct in question constituted unlawful harassment.
It also challenged the finding that the Claimant was able to rely on her (constructive) dismissal as a distinct act of sex discrimination.
The EAT dismissed the Union's appeal as regards the lay officials' conduct. It overturned the ET's finding that Mr Saini and Mr Coxhill were employees but it upheld the alternative finding that the Union was liable for their conduct as its agents. However, it allowed the appeal in relation to the conduct of the employed officials: it found that the ET had misdirected itself as to the necessary ingredients for liability and remitted this part of the claim for a re-hearing.
The Union appealed to this Court against the EAT's decision that it was liable for the conduct of the lay officials. Permission was granted by Lewison LJ. The Claimant does not seek to resurrect the finding that Mr Saini and Mr Coxhill were employees of the Union but she resists the appeal on the basis that they were its agents. The Claimant also appealed against the EAT's decision as regards the employed officials. Again, permission was granted by Lewison LJ. (I should add that he refused the Union permission to appeal on a further ground – “ground (3)” – concerned with the ET's finding that the dismissal was discriminatory.)
The Union was represented before us by Mr Oliver Segal QC and Ms Katharine Newton and the Claimant by Mr Bruce Carr QC leading Mr James Wynne. Mr Segal and Mr Wynne appeared at both stages below. The case was very well argued on both sides. The one-day listing proved tight, and both...
To continue reading
Request your trial
-
Mr D Kalirai v Hamton Environmental Services Ltd and Aston Martin Lagonda Ltd: 1304912/2020
...of the respondent’s conduct. Thus, as Mr Palmer reminds us, whilst less favourable treatment will involve a UNITE the Union v Nailard [2019] ICR 28 at [92] to s. 23 EqA 47 Nagarajan v London Regional Transport [1999] IRLR 572; [1999] UKHL 36; applied in Igen v Wong at [37] 48 Ayodele v City......
-
Mrs Onuoha v Croydon Health Services NHS Trust: 2300516/2019
...enough to point to the relevant characteristic as the mere background to the events. As Underhill LJ said in UNITE the Union v Nailard [2019] ICR 28: ‘… The necessary relationship between the conduct complained of and the claimant’s gender was not created simply by the fact that the complai......
-
Mr Colleridge Bessong v Pennine Care NHS Foundation Trust
...for which the Claimant contends. The EAT is in any event bound by the decision of the Court of Appeal in Unite the Union v Nailard [2019] ICR 28, which confirms that there is currently no explicit liability under the 2010 Act on an employer for failing to prevent thirdparty harassment. Co......
-
Mr D Kalirai v Hamton Environmental Services Ltd and Aston Martin Lagonda Ltd: 1304912/2020
...of the respondent’s conduct. Thus, as Mr Palmer reminds us, whilst less favourable treatment will involve a UNITE the Union v Nailard [2019] ICR 28 at [92] to s. 23 EqA 47 Nagarajan v London Regional Transport [1999] IRLR 572; [1999] UKHL 36; applied in Igen v Wong at [37] 48 Ayodele v City......
-
Government Outlines Plan To Change To Law On Sexual Harassment At Work
...in the face of third-party harassment itself constituted an unlawful act. The Court of Appeal held in Unite the Union v Nailard [2018] EWCA Civ 1203 that an employee would need to show that the protected characteristic was the reason for the employer's failure to protect them against the ha......
-
Why Employers Can Be Liable For Discrimination Via Their Agents
...with liability no matter what steps it has taken and whether or not it knew about the conduct in question. Unite the Union v Nailard [2018] EWCA Civ 1203 The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your s......
-
The definition of discrimination
...regulations and guidelines. The EHRC guidance provides examples such as allowing a disabled person to 49 Unite the Union v Nailard [2018] EWCA Civ 1203 24.05.2018, available at: https://www.bailii.org/ew/cases/EWCA/Civ/2018/1203.html . 50 Court of Appeal, Weathersfield Limited t/a Van & Tru......