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Union is liable under Equality Act for harassment by its union reps

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Do trade union officials act as agents of that union?

Yes, depending on what they are authorised to do, says the Court of Appeal in Unite v Nailard.

The Claimant brought claims against the union, as her employer, for the actions of union officials. Unite defended the claims on the basis that the officials were not acting as agents for the union. Section 109 (2) Equality Act 2010 makes principals (like Unite) liable for the actions of their agents (the union officials)

Unite argued that the union officials only had authority to conduct branch meetings, represent the union at meetings with other groups and similar duties. Anything the officials had done to the union's employees was outside that authority, so they were not acting as an agent for Unite. In rejecting that argument, Lord Justice Underhill said:

"[T]he effect of the language of section 109 (2) is to render a principal liable for the acts of his or her agents done in the course of the performance of their authorised functions, I can see no justification for limiting that liability in the way proposed by [Unite]. An agent may stand in the shoes of the principal in dealing with A, but if while wearing them he treads on B's toes I see no good reason why he should not be liable to B just as much as if it had been A's toes that were crushed: in both cases the wrong is done in the course of performing the authorised functions."

The officials were therefore agents of Unite and Unite were liable for the officials' actions.

Thanks to Matthew Jackson of 10 KBW for preparing this case summary.