Work experience can be an “employment service” within the Equality Act 2010 (EqA), if the normal EqA employment provisions do not apply. Issues arise if a university or other education provider has “power to afford access” to it: separate page on Work placements related to education courses.
Summary
- Employers providing work experience are generally liable for discrimination under the EqA, subject to the next point. Claims against them normally go to the employment tribunal.
- Where a university or other Part 6 education provider has “power to afford access” to work experience for their students:
- the education provider has a duty not to discriminate
- the work placement provider may well be liable for discrimination, but there is some uncertainty after Brexit (unless the student is an “employee” who can claim under the normal EqA employment provisions)
- it will depend on the facts whether a claim goes to the employment tribunal or county court.
EqA employment provisions
EqA ss.55-56 (within the EqA Part 5 employment provisions) prohibit discrimination in relation to “employment services”. S.56 defines these as including work experience: below “Employment services” includes work experience.
However, the position is not quite that simple. Sometimes the general employment provisions apply instead. More importantly, if work experience is accessed though an education provider, the employment provisions may sometimes be excluded. I discuss the details below: Technical note: When is a work experience provider within the EqA employment provisions?
Assuming the EqA employment provisions apply…
Assuming there is a claim either as an employment service (s.55), or under the normal employment provisions, any claims in respect of work experience go the employment tribunal, and the normal prohibitions on discrimination and harassment apply.
Reasonable adjustment duty
The usual employment-type reasonable adjustment duty (or very close to it under s.55) applies to work experience, so:
- the duty is owed to the individual rather than being anticipatory (contrast this with other employment services: Employment services: Technical issues on reasonable adjustment duty), and
- the employer or placement provider has an “ignorance defence”, if it did not have actual or constructive knowledge of the disability and disadvantage (Knowledge of disability).
Where s.55 EqA applies (ie if the individual is not an “employee”), technically the reason for both those points is that under EqA Sch 8 para 2, the reasonable adjustment duty is owed to an “interested disabled person”, which as regards work experience is defined in EqA Sch 8 para 16. (Contrast that with other employment services for which Sch 8 does not define an “interested disabled person”).
“Employment services” includes work experience
Even if the individual is not an employee/worker within s.83(2)(a) EqA, work experience still falls within the EqA employment provisions, on the basis that it is an “employment service” within s.55 EqA – unless the education-related exception in s.56(4)(5) applies (Work placements related to education courses).
The definition of employment service in EqA s.56 – s.56(2)(a) with (6)(b) – includes: “Work experience (including work experience the duration of which is not agreed until after it begins)”.
“Employment services” generally are discussed at ‘Employment services’: agencies, careers guidance, vocational training etc.
Making arrangements for work experience
The s.56 definition of “employment services” also includes “making arrangements for the provision of” work experience (unless excluded by s.56(4)(5) in relation to an education provider). See too the Employment Code at para 11.59.
Although claims for this go to an employment tribunal, the reasonable adjustment duty for it is probably anticipatory, and with no statutory “ignorance defence”, on the basis that it is a “vocational service” within s.55(7): see Employment services: Technical issues on reasonable adjustment duty>Vocational services.
Technical note: When is a work experience provider within the EqA employment provisions?
EqA ss.55-56 (within the EqA Part 5 employment provisions) prohibit discrimination in relation to “employment services”. S.56 defines these as including work experience: above “Employment services” includes work experience.
However, the position is not quite that simple. Firstly, if the individual is an “employee” within the EqA definition, so as to fall within its normal employment provisions (ss.39-40) anyway, ss.55-56 are not needed.
Secondly s.56(4)(5), as written, says broadly that work experience for a student is not an employment service if a university or other Part 6 education provider has “power to afford access” to it. However, at least for universities and FE colleges, this was – and may still be – modified by a pre-Brexit case on EU law, and/or by human rights law: see Work placements related to education courses. That link (at Which court?) also discusses possible ancillary liabilities where an education provider is involved, such as agency, helping, or inducing etc.
In summary, and apart from those ancillary liabilities, it seems that discrimination by a provider of work experience is within the EqA employment provisions if any of the following apply:
- the student is an “employee” of the placement provider as defined in EqA s.83(2)(a): see Employees, workers and beyond>Definition or worker, and Volunteers. Here the normal EqA employment provisions apply, and ss.55-56 are excluded by s.56(3); or
- a university or other Part 6 education provider does not have “power to afford access” to the work experience, so the exceptions in EqA s.56(4)(5) do not apply (even without modification by Blackwood etc, below) and the student is protected by ss.55-56; or
- despite an education provider within EqA Part 6 having power to afford access, either the Blackwood case (based on EU law) or human rights law modify s.56(4)(5) so as to allow a student to claim against a work placement provider under ss.55-56: see Work placements related to education courses>Uncertainty after Brexit.
So the individual may be an “employee” as defined in the EqA, or if not may have a claim under the “employment service” provisions in ss.55-56. It may be prudent to plead both possibilities in the alternative. See too Work placements related to education courses>Technical points: ‘Employee’ or ’employment services’?
