A failure to deal with discrimination is not necessarily discrimination

The EAT has considered whether a failure to tackle discrimination (in this case, harassment) can itself be an act of discrimination in the case of Unite the Union v Nailard.


Ms Nailard was employed by Unite as a Regional Officer based at Heathrow Airport. She complained of sexual harassment by two elected officials (a convenor and a branch chair) who carried out their union duties full-time but remained employed by the airport. Despite her complaints to the Regional Secretary and Chief of Staff, the union failed to deal firmly or decisively with the complaints. Instead, they offered to transfer her to another office and in response she resigned.

The ET Decision

Ms Nailard’s claims of constructive unfair dismissal and sexual harassment by the elected officials (the convenor and branch chair) succeeded. The Employment Tribunal (ET) also decided that:

  • The union was vicariously liable for the elected officials either as their employees or agents
    The paid officials (including the Regional Secretary and Chief of Staff) were themselves guilty of harassment for failing to deal with the complaints.

The EAT Decision

The union appealed against these two findings. The Employment Appeal Tribunal (EAT) decided that:

  • The convenor and branch chair were not employees of the union. The union rule book was not an agreement to work personally, and it didn’t provide for payment of any kind. At all times, these officials remained employed by the airport, which was required by law to allow them time off for their union duties. However, the conduct took place at meetings and as part of their duties, so they were acting as agents for the union. As a result, the union was vicariously liable for their actions.
  • The ET was wrong to hold as it did that the senior (paid) officials were guilty of harassment because they failed to address the initial complaints of harassment. The ET had found that these officials had not acted with a ‘discriminatory motive’. Harassment has to be conduct ‘related to’ sex; the ET had failed to properly consider whether the paid officials’ inaction was related to sex.

The fact that the initial acts complained of were so related was not enough. That point was remitted to the same tribunal to be reconsidered.

Learning Points

Harassment must be ‘conduct related to’ a protected characteristic, such as sex. Conduct can include inaction, so the question is: was that conduct or inaction related to sex. It may, but in order to decide that a tribunal will have to consider why the officials failed to act. By condoning the harassment, they may also be guilty of harassment but there are a number of reasons why senior managers behaved as they did.

Those advising on HR matters should be alive to the possibility that failing to tackle discrimination could be a further act of discrimination. If an employer cannot deal with a matter in good time or respond in the way which an employee would like, that needs to be made clear in order to avoid giving the employee the impression that they have been subjected to further acts of harassment.

If so, an employment tribunal may decide that there has been an ongoing course of conduct which would not only give the employee more time to lodge their claim but it would increase the seriousness of the conduct, and the possible compensation.

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