The claimant was employed by the union as a full-time regional officer responsible for union members based at a London airport. When she complained to the union that two locally elected officials of the union had subjected her to sexual harassment during meetings, an employed union official carried out an investigation, following which another employed union official, in order to protect her from bullying and harassment by the elected officials, transferred the claimant to a different area. The claimant resigned and made claims against the union of, inter alia, direct sex discrimination, contrary to section 39(2) read with section 13(1) of the Equality Act 2010, and unlawful harassment related to her sex, contrary to section 40 read with section 26(1) of the 2010 Act. An employment tribunal found that: (i) the elected officials had sexually harassed the claimant and that the union was vicariously liable, either as their employer under section 109(1) of the Act, or as a principal under section 109(2) for acts done by the officials as its agents; and (ii) the employed officials were also guilty of sex discrimination under section 13 and sexual harassment under section 26 since their failure to protect the claimant against the elected officials’ harassment, although not done with a discriminatory purpose, had been “because of” the claimant’s sex, within section 13(1), and was “related to” her sex, within section 26(1), since it had concerned her complaints of sexual harassment. The Employment Appeal Tribunal (i) dismissed the union’s appeal as regards the elected officials’ conduct, holding that the elected officials were not employees of the union but that the union was liable for their conduct as its agents, pursuant to section 109(2); but (ii) allowed the union’s appeal as regards the employed officials and remitted that part of the claim for a rehearing, finding that the tribunal had misdirected itself as to the necessary ingredients for liability under sections 13(1) and 26(1). The union appealed against the conclusion that it was liable for the conduct of the elected officials and the claimant cross-appealed against the conclusion regarding the employed officials.
On the appeal and the cross-appeal—
Held, appeal and cross-appeal dismissed. (1) The effect of section 109(2) of the Equality Act 2010 was that the principal would be liable wherever the agent discriminated in the course of carrying out the functions he was authorised to do. That effectively equated the circumstances in which a principal might be liable for the acts of an agent with the “course of employment” test governing the liability of employers for the acts of their employees. It might well extend the scope of the liability beyond what would apply at common law; but there was no reason why Parliament should not have chosen to effect such an extension in discrimination cases. There was, therefore, no justification for limiting a principal’s liability to acts of the agent that were acts towards third parties. It was not contentious that the dealings in the context of which the harassment of the claimant had taken place were functions which the elected officials had been performing on behalf of the union. Accordingly, the union was liable as principal for the harassment carried out by the elected officials, pursuant to section 109(2) (paras 41–45, 111).
(2) Authority in relation to differently worded predecessor legislation had established that discrimination would be “on the grounds of” a proscribed factor either if the act complained of was inherently discriminatory or if it was rendered so by a discriminatory motivation, ie by the mental processes which led the putative discriminator to do the act. Where the act complained of was an employer’s failure to protect an employee against discrimination or harassment by a third party, a “discriminatory motivation” was not established by showing simply that what the employer had failed to protect the employee against was unlawful discrimination: the focus was on the grounds for the employer’s action, not the third party’s. That applied also to the phrase “because of” in section 13(1) in the 2010 Act and to the phrase “related to” in section 26(1). Accordingly, if the employed officials, and through them the union, were to be held liable for discrimination or harassment because of their failure to protect the claimant from the harassment of the lay officials, that could only be on the basis of their own discriminatory motivation, not that of the elected officials (paras 85–90, 95–99, 104–110, 111).
Oliver Segal QC and Katharine Newton (instructed by Thompson Solicitors llp) for the union.
Bruce Carr QC and James Wynne (instructed by Richard Slade & Co) for the claimant.