EAT Jurisdictional Points : Worker, Employee or Neither
HARASSMENT
SEX DISCRIMINATION – Direct
TRADE UNION RIGHTS
The appeal concerned sexual harassment by elected officers of the Respondent trade union against a paid (employed) officer.
1. The ET held that the elected officers were employees of the Respondent under the extended definition in section 83(2) of the Equality Act 2010. Appeal allowed on this ground. The elected officers were not employees under the extended definition. Allonby v Accrington and Rossendale College [2004] IRLR 224, Jivraj v Hashwani [2011] IRLR 827 and Halawi v WDFG UK Ltd [2015] IRLR 50 considered and applied
2. The ET held that the Respondent was responsible for the harassment of the elected officers by virtue of section 109(2). Appeal dismissed on this ground. Kemeh v Ministry of Defence [2014] IRLR 377 and Heatons Transport v Transport and General Workers’ Union [1972] ICR 308 considered and applied.
3. The ET held that the paid officers themselves harassed the Claimant by failing to take action against the elected officers to prevent harassment and by deciding to transfer her elsewhere. Appeal allowed on this ground, but matter remitted to ET for reconsideration. The ET had applied the wrong legal test; the question was whether the conduct of the elected officer in question was ‘related to sex’; it was not ‘related to sex’ merely because it was concerned with earlier harassment by the elected officers which was related to sex. Conteh v Parking Partners Ltd [2011] ICR 341, Equal Opportunities Commission v Secretary of State for Trade and Industry [2007] ICR 1234 and Sheffield City Council v Norouzi [2011] IRLR 897 considered.
4. The ET held that, if it had not found that the paid officers harassed the Claimant, it would have found that they had discriminated against her because of sex – direct discrimination. The finding in this respect would also be remitted. The ET was required to focus on the mental processes of each paid officer and ask whether that officer’s conduct was because of sex. CFLIS (UK) Ltd v Reynolds [2015] IRLR 562 applied.
5. Section 64(2)(f) of the Trade Union and Labour Relations (Consolidation) Act 1992 is not concerned with decisions relating to the employment of a paid officer employee of the Respondent (who may or may not be a member of the Respondent union).
David Richardson HHJ
[2016] UKEAT 0300 – 15 – 2709
Bailii
Equality Act 2010
England and Wales
Employment, Discrimination
Updated: 24 January 2022; Ref: scu.570396
