Equality Act gap
Labour & European Law Review Weekly Issue 482 10 August 2016
The Court of Appeal has held in Blackwood v Birmingham & Solihull Mental Health NHS Trust that section 56(5) of the Equality Act 2010 has to be rewritten so that students who have been subject to discrimination during a vocational work placement can bring a claim in a tribunal (as opposed to the county court) against the employment service provider.
After starting a three-year diploma in mental health nursing at Birmingham City University in September 2008 which involved doing a work placement, Ms Blackwood had a baby in 2010. The course was extended and in November 2012 she started a work placement at a unit organized by the University but operated by the Trust.
However, once it became clear that she could not do nights and weekends because of childcare responsibilities, the Trust withdrew the placement. She brought a claim of indirect sex discrimination against the Trust as an “employment service provider”. For its part, the Trust argued that the tribunal did not have jurisdiction to hear the claim because section 56(5) of the Equality Act provides that the university has the “power to afford access” to the training.
Section 55 of the Act provides protection from discrimination for those seeking or undergoing vocational training.
Section 56(5) states that section 55 “does not apply in relation to training or guidance for students of an institution to which section 91 applies in so far as it is training or guidance to which the governing body of the institution has power to afford access”.
Section 91 makes it unlawful for universities, colleges and other higher education (HE) and further education (FE) institutions to discriminate, harass or victimise a student or student applicant in relation to the provision of education, the way it affords the student access to a benefit, facility or service, by not providing education, or excluding the student, or subjecting them to any other detriment.
A claim under section 55 can be brought in the employment tribunal as it falls under Part 5 of the Act relating to “Employment etc”, whereas a claim under section 91 must be brought in the county court as it falls under Chapter 2 of Part 6 of the Act relating to discrimination provisions as they apply to “Further and Higher Education”.
Tribunal and EAT decision
It was accepted that the Trust was an employment service provider by providing a work placement for vocational training. The tribunal held that it did not have jurisdiction to hear the claim on the basis that it was the university that had set up the placement with the Trust in the first instance and therefore section 56(5) applied.
The EAT agreed holding that “Parliament's intention is plain: if a university has power in respect of vocational training and guidance undertaken by its students, then that training and guidance should be seen as part of that higher education, and complaints of discrimination should be pursued under the education provisions. In England and Wales that means claims should be brought in the county court, not the Employment Tribunal”.
Decision of Court of Appeal
Overturning the EAT decision, the Court of Appeal held that there was a gap in the protection offered by the legislation. In particular, students would not be able to bring a claim of discrimination against the service provider of a work placement in the county court under section 91. The Trust argued that one option would be to treat the Trust as an agent of the university. The court rejected that as an artificial construction since the relationship between a university and a Trust took many forms.
Instead the court preferred to reword section 56(5). This would enable students to bring a claim under section 91 against the university, college or other HE or FE institution in the county court if the claim concerned discriminatory access to a work placement. For example, if a woman student was denied access to a plumbing course because she was a woman. The primary claim would be against the university but if the provider “induced or aided that contravention”, it would also be liable.
However, if the claim was about discrimination by the provider during the course of the work placement, then that provider would be primarily liable under section 55 and proceedings could be brought in the tribunal.
This decision clarifies that a student who is subject to discrimination during a vocational work placement can bring a claim against the provider in an employment tribunal. However, the effect of this decision as Lord Justice Underhill realised, is that where a student suffers discrimination as a result of being denied access to a course and discrimination during the course of the placement then two claims would have to be brought – the former in the county court and the latter in the tribunal.