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Blackwood v Birmingham and Solihull Mental Health NHS Foundation Trust

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Last updated 13th June 2019.

The court re-interpreted the Equality Act to comply with EU law, so that a student discriminated against by her work placement provider was not left without a claim. She was entitled to claim against the provider in an employment tribunal. Her right to do this should be excluded only so far as the EqA provisions on education gave her a right to claim in the County Court.

Court of Appeal, 2016. Full judgment: bailii.org.

Facts

The claimant was undertaking a Diploma of Higher Education in Mental Health Nursing. Her university arranged a vocational placement with the Trust. However, the Trust withdrew the placement. This was because owing to childcare responsibilities the claimant was unable to comply with shift patterns requiring her to work late or night shifts. She made a claim for indirect sex discrimination to the employment tribunal, against both the university and the Trust. She withdrew the claim against the university when it argued that any claim against it should go the County Court (on the basis the claim fell within Part 6 of the Equality Act on education rather than Part 5 on employment). The court therefore only had to consider the claim against the Trust.

The employment tribunal and employment appeal tribunal both held that any claim against the Trust must be made to the County Court under EqA Part 6. The employment tribunal had no jurisdiction. S.56(5) EqA excluded an employment tribunal claim under the ’employment services’ provisions because the university had ‘power to afford access’ to the placement.

Held by the Court of Appeal: the court must re-interpret the Equality Act so as to comply with EU law, so that she could claim against her work placement provider in the employment tribunal.

Court of Appeal decision

The court held that on the wording of the Equality Act the claimant did not have a claim against the Trust, ie her work placement provider. On the wording of the Act her claim against the placement provider would have to be under the education provisions in Part 6, and therefore to the County Court, because the ’employment services’ provisions were excluded by s.56(5). However the education provisions did not give her a claim against the placement provider, so she would have no claim.

Leaving her without a claim against the placement provider would be contrary to EU law. EU directives, including the Framwork Employment Directive, require that vocational training is covered by the Equality Act.

Accordingly under the ‘Marleasing’ principle the Equality Act provisons should be re-interpreted so that liability of the work placement provider is only excluded by s.56(5) EqA so far as the provider is liable in the County Court under the education provisions. The court re-worded s.56(5) as follows:

“This section does not apply to discrimination in relation to training or guidance for students of an institution to which section 91 applies to the extent that the student is entitled under that section to make a claim as regards that discrimination.”

The court summarised the consequences of this: see paragraph 61 of its judgment quoted below. Very briefly, if the claim is about access to the placement then the claim is likely to be in the County Court. If the claim is about discrimination by the provider in the course of the work placement, the claim will typically be in the employment tribunal (unless unusually the provider was acting as agent of the university).

There may occasionally be cases in which a student wishes to complain both about discrimination regarding access to a work placement and about discrimination in the course of the placement. The court acknowledged that the need to pursue those claims in different forums would involve expense and inconvenience, which was regrettable (para 62).

Paragraphs 61 and 62 in full are as follows:

61. It may be helpful after so lengthy a discussion if I summarise what I believe to be the effect of sections 55 and 56, construed so as to give effect to the relevant Directives. The starting-point in any case is to identify the nature of the student’s complaint – that is, whether it is about discriminatory access to a work placement or about discrimination occurring during the placement.

(1) If the claim is about access – either that the university has failed to provide a placement at all or that it has done so in a discriminatory way – it can only be brought under section 91, and thus in the County Court. The primary claim will inevitably be against the university, because it is the university that has the responsibility for the provision of access, and it is hard therefore to see any role for sections 109 and 110; but if the provider has induced or aided that contravention it will be secondarily liable under section 111 or 112 and the student can proceed against it (in the County Court) as well as, or instead of, the university.

(2) If the claim is about discrimination by the provider in the course of the work placement, the provider will typically have done the act complained of as a principal and will thus be primarily liable for that discrimination under section 55, with the forum for any proceedings being the Employment Tribunal. There may be untypical cases where the act was done by the provider as the agent of the university. In those cases both the university and the provider will be liable, by virtue of sections 109 (2) and 110 (1) respectively, but the liability will still arise under section 55, so that the [Employment Tribunal] will still be the correct forum whether the claimant chooses to proceed against only one of them or against both. The university may of course also in a particular case be liable, depending on the facts, under sections 111 or 112 as having induced or assisted the discrimination. Any such claim will, again, have to be brought in the [Employment Tribunal]: see sections 114 (1) (e) and 120 (1) (b).

62. I recognise that on this analysis there may occasionally be cases in which a student wishes to complain both about discrimination in his or her access to a work placement and about discrimination in the course of that placement and that the need to pursue those claims in different forums will involve expense and inconvenience. That is regrettable, but it could only be avoided by denying students the right to bring claims arising out of work placement discrimination at all or by re-writing the Act so as to allow such claims to be brought under Part 6. For the reasons given above neither course is in my view acceptable.

My comments

This is a very important case, because if clarifies that students are not left without an Equality Act claim for discrimination by the work placement provider if – as is often the case – the univerisity has power to afford access to the placement.

For more discussion of the implications of the case, see my page Work placements related to education courses.

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