ABSTRACT
These are defined in all the legislation as ‘an organisation of workers, or ... of employers, or any other organisation whose members carry on a particular profession or trade for the purposes of which the organisation exists’. The relevant provisions are s 12 of the SDA 1975, s 11 of the RRA 1976, and reg 15 of either the Sexual Orientation, or Religion or Belief, Regulations 2003.138 The law covers access to and conditions of membership – as opposed to employment – as well as benefits, facilities and services conditional upon such membership, and expulsion and the imposition of any other detriment. Depending on its tactics in collective bargaining, a union might also be liable for pressure to discriminate or for aiding the unlawful acts of an employer. A union is normally vicariously liable for the actions of its paid officials, but as shop stewards are unpaid agents rather than paid employees, liability is dependent on general principles applicable to liability for the actions of agents – whether the actions of the shop stewards had been taken within the scope of the authority conferred upon them by the trade union.139 The provisions extend to discrimination and, save for the SDA 1975, harassment.140 This does not mean that sexual harassment by trade organisations is lawful, as the courts have recognised sexual harassment as a form of direct discrimination, it is just that there is now a statutory definition, which, for sex, is not due for implementation until 5 October 2005. Trade organisations are permitted to engage in two limited forms of positive action, which are discussed in Chapter 18.141
Unions may be placed in a difficult situation where an allegation of harassment is made by one union member against another, as occurred in Fire Brigades Union v Fraser.142 It was the union’s stated policy to support a person (of whatever sex) in a claim of harassment and not to support the accused. The union chose to support a women who had complained of harassment and consequently declined to provide the accused, Mr Fraser, with assistance and representation in the disciplinary hearing. The Court of Session held that as the policy was conduct-related, rather than genderrelated, it did not infringe s 12 of the SDA 1975, and so the accused lost his claim against the union for sex discrimination.
