Unite the Union v Nailard (Court of Appeal)

In brief

The Court of Appeal held that a trade union can be vicariously liable for sexual harassment committed by its elected officials acting in their official capacity, even though those officials were not employees of the union. EA 2010 s.109 extends vicarious liability beyond employees to 'agents' and those 'with authority'. The court found that elected union officials exercising their official functions fell within this extended liability. The existence of a harassment policy or code of conduct does not automatically provide a complete s.109(4) defence ('all reasonable steps').

Key provisions

• s109-extended-scope — EA 2010 s.109 vicarious liability extends to non-employee agents and those 'with authority': EA 2010 s.109 extends vicarious liability beyond employees to 'agents' and those 'with authority'. Elected union officials exercising official functions fell within this extended liability. The principle generalises: organisations can be vicariously liable for the conduct of non-employee actors who exercise authority on their behalf.
• s109-4-policy-insufficient — Paper harassment policy alone insufficient for s.109(4) 'all reasonable steps' defence: The existence of a harassment policy or code of conduct does NOT automatically provide a complete s.109(4) defence. 'All reasonable steps' requires evidence of training, monitoring, enforcement — not just a paper policy. Mere existence of a policy without operational implementation is insufficient.

When relevant

Cite when: (a) vicarious liability for non-employee actors (agents, officials, intermediaries) is in issue under EA 2010 s.109; (b) respondent advances a s.109(4) 'all reasonable steps' defence based on policy/code existence; (c) third-party harassment context (relevant under WPA-2023 preventative duty); (d) membership associations / trade unions / professional bodies — any structure where harm comes from someone exercising organisational authority without being an employee; (e) directly engaged with SPA-2026's treatment of associations (Part 7) and harassment (fn 17, fn 66).