Work placements are covered by the Equality Act, either under the employment provisions, or under the education provisions applying to universities etc. Claims may need to go either to the employment tribunal or to the County Court.
Summary
- The university (or further education college), or the work placement provider, is liable if it unlawfully discriminates in relation to work placements. So is any separate professional exam body. Below Discrimination is covered by the Equality Act.
- A student will be looking to resolve the situation without having to go to court: separate page Resolving issues at university or FE college.
- If a legal claim is brought, sometimes it will need to go to the County Court and sometimes to the employment tribunal. This affects time limits for bringing a claim, which can range from three to nine months. Below, including examples, Which court?
- Essentially each body, eg university or placement provider is liable for discrimination by it. One looks at their liability separately rather than treating them as a single entity. Below Liability of each body should be considered separately.
- This page focuses on work placements related to a university course or further education course. However the position for work placements related to schools (below) is likely to be similar.
- Work experience not related to a university, school etc should be within the Equality Act as an ’employment service’, if the person is not an employee anyway.
In 2002 the DfES published a good practice guide for further and higher education institutions: Providing Work Placements for Disabled Students (pdf, dera.ioe.ac.uk).
Discrimination is covered by the Equality Act
The university (or further education college) and the work placement provider should be subject to the Equality Act. (For professional exams any separate ‘qualifications body’ may also be liable.) The student should have a claim if there is unlawful discrimination by any of them, for example discrimination by the university in arranging the placement, or discrimination by the placement provider in the workplace. There are possible examples below.
The liability of the work placement provider was clarified by the Court of Appeal in Blackwood v Birmingham and Solihull Mental Health NHS Foundation Trust in 2016. The court ‘re-interpreted’ the Equality Act to comply with the relevant EU directive, so that students discriminated against by a placement provider are not left without a claim.
The normal types of discrimination apply, subject to the rules on competence standards in examinations by universities or professional bodies.
Essentially each body, eg university or placement provider, is liable for discrimination by it. One looks at each body’s liability individually: see below Liability of each body should be considered separately. However as discussed below under Which court?, both bodies may be liable if eg one is agent of the other. Even so, you cannot treat the university and a separate work placement provider as one entity.
There are some technical points below on coverage of universities and placement providers. In particular, for a claim under the employment provisions of the Equality Act a student may want to ensure the wording of his claim reflects the fact that he may be either an ’employee’ or within the ’employment services’ provisions.
Which court?
Firstly and most importantly, a student will be looking to resolve the situation without having to go to court. See Resolving issues at university or FE college.
However if a legal claim is brought it may have to go to either the County Court (sheriff court in Scotland) or the employment tribunal depending on the particular facts. This means the time limit for bringing a claim may be as short as three months or as long as nine months. Internal and external complaint/appeal procedures do not extend the time limit for making a legal claim (with one exception). Generally claimants will prefer to bring a claim in an employment tribunal if possible.
- Claims against the university or further education college will normally be under the Part 6 education rules of the Equality Act (s.91), and so go to the County Court (sheriff court in Scotland). The time limit for bringing the claim is generally six months, or sometimes nine – see Resolving issues at university or FE college.
- Claims against the work placement provider (or a ‘qualifications body’ for professional exams) will normally be under the Part 5 employment rules of the Equality Act, and so go to the employment tribunal. The time limit for bringing a claim is generally three months – see Resolving employment disputes.
- However that will not always be the case, as discussed by the Court of Appeal in Blackwood. For example if one body helped discrimination by the other contrary to s.112 EqA, or (unusually) acted as agent of the other, this is likely to bring the first body within the jurisdiction of the court applicable to the other body. See the examples below. (But I think it’s not clear that claims for “instructing”, “causing” or “inducing” a breach under s.111 EqA would be available here in the way discussed by the Court of Appeal: my comment at Blackwood v Birmingham and Solihull Mental Health NHS Foundation Trust>S.111(7) EqA.)
The examples below illustrate which court disputes should go to, as I understand it. Whether there is unlawful discrimination in each case will depend on the facts.
Example: A university chooses to allocate a student who stammers to a placement which has restricted duties, eg not talking to customers/clients. This does not give her the range of training and experience that other students will get. A claim against the university is likely to be to the County Court. So is any claim against a placement provider which aided (or induced??) the university to do so.
Example: The university wants the student to go to a particular placement provider, but the placement provider turns them down for a reason related to the stammer. Despite the Court of Appeal in Blackwood saying that claims about access should go to the County Court, it seems to me that a claim against the work placement provider here should be to the employment tribunal – assuming the university is not at fault and assuming the placement provider is not the university’s agent.
Example: The work placement provider discriminates against the student in the job, for example it fails to make reasonable adjustements in the job, or its staff harass the student. Any claim would normally be against the work placement provider in the employment tribunal. If the university aided (or induced??) the discrimination, it too could be liable in the employment tribunal. (If, untypically, the work placement provider was acting as agent of the university, both are likely to be liable in the County Court.)
Example: A student cannot continue her course unless the placement provider ‘passes’ her. The placement provider refuses to ‘pass’ the student for a reason related to the stammer.
If this is unjustified, the discrimination is likely to be covered by the Equality Act. However the technical details and reasoning for that are unclear, including which court the dispute should go to. For example, perhaps the university is potentially liable before the County Court for failure to make reasonable adjustments or for discrimination arising from disability unless it disregards the refusal to pass the student (after due investigation of whether the refusal was justified). Perhaps the work placement provider could be liable before the County Court under s.112 EqA for aiding (or inducing??) a breach by the university, or before the employment tribunal for employment discrimination.
“Example: An engineering manufacturing firm offers 10 internships for engineering students who have completed their course at a local FE college. The firm explains to the course tutor that they have an all-male working environment and so only want male interns. The course tutor agrees to advertise the opportunity to male ex-students only. The engineering firm would be discriminating because of sex and the education provider would be unlawfully assisting them.”
This is in para 3.34 of the EHRC’s 2012 Technical guidance on further and higher education, as an example of it being unlawful under s.112 EqA to knowingly help someone else discriminate. There might be a similar arrangement related to disability. Presumably here the claim would go to the employment tribunal, as the university is helping a breach of the employment rules. (Perhaps the university could also be liable in a County Court claim under s.91 EqA, for itself discriminating against students.)
The Court of Appeal in Blackwood acknowledged that 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, and has to bring claims in both the County Court and the employment tribunal.
Schools
This page focuses on work placements in relation to universities and further education colleges. However the position seems likely to be similar as regards work placements arranged by schools.
There might be some dispute, depending on facts, whether the EU Framework Employment Directive applies to the particular placement. However generally it seems likely that the directive would apply. Assuming it does then the Court of Appeal decision in Blackwood (below) should mean that discrimination by the placement provider is within the Equality Act, even if the student is not an employee.
Assuming Blackwood applies (and subject to the next paragraph) discrimination claims should go either to the employment tribunal or (rather than the County Court) to the appropriate tribunal for schools, as discussed above in Which court? The appropriate tribunal for schools will depend on whether it is England, Wales or Scotland: see Schools: Resolving disputes.
A small difference as regards schools compared with universities is that employees and agents do not seem to be liable under s.110 EqA for discrimination against pupils (s.110(7)). Also people helping discrimination against pupils do not seem to be liable under s.112 (s.112(6)). This presumably means that if the work placement provider is acting as agent of the school (probably unusual), the placement provider would not be liable for discrimination itself but the school would be liable on a claim to the appropriate tribunal for schools.
Liability of each body should be considered separately
The liability of each body should be considered separately. For example one looks at what adjustments it would have been reasonable for that body to make. As discussed under Which court? above, both bodies may be liable if eg one helps discrimination by another or one is agent of the other. Even so a claimant needs to show how each particular body is liable. One cannot treat the university and work placement provider as one entity, nor (as in the following case) an employer and a qualifications body:
County Durham and Darlington NHS Foundation Trust & Health Education England v Jackson (bailii.org), Employment Appeal Tribunal (EAT), 2018
The claimant was training to be a Consultant Anaesthetist until she developed a latex allergy. She suffered an anaphylactic reaction when wearing latex gloves, gown and mask. Occupational Health recommended she avoid contact with latex and work in a latex free environment. After meetings and enquiries, HSE (the NHS body responsible for training) informed her that she would not be able to continue with her training because of the condition and she resigned from her employment with the Trust. She claimed that both HSE and the Trust had failed in their duty to make reasonable adjustments to enable her to continue to work and train in a latex free environment.The employment tribunal (ET) upheld the claim on the basis (in effect) that it ought to have been possible somehow to continue her training within the NHS and that the HSE and Trust had not done enough to investigate matters.
The EAT overturned this decision. The ET had treated the NHS as a single entity and failed to have proper regard to the specific legal functions and powers of HSE and the Trust. As a result the ET had (a) imposed liability on both of them indiscriminately without any separate consideration of their respective positions, (b) had decided it would have been a reasonable adjustment on the part of both of them to provide training and work in a latex free hospital when HSE had no control over any hospital and the Trust had no control over hospitals of other Trusts and no control over where the HSE required the claimant to carry out her training, and (c) apparently decided that they should both make adjustments in relation to exams or other speciality training requirements when neither of them had control over these matters.
If the Trust or HSE had been liable, the Trust would have been liable as an employer, and HSE would have been liable as a ‘qualifications body’ for professional exams.
Technical points: Liability of university or FE college
As regards Equality Act duties of the university or FE college, the Act includes discrimination in relation to any “benefit, facility or service” for a student. The non-exhaustive list of examples of what is covered by this, in para 10.25 of the Technical guidance, includes arranging work placements, and placement-finding services.
See on this area University and FE college – more detail>What activities are covered?
Technical points: Liability of work placement provider
Technical points: ‘Employee’ or ’employment services’?
The main point is that the work placement provider is subject to the Equality Act. However technically this may be on the basis either that the student is an ’employee’, or that the work placement is ’employment services’. If a student is bringing a claim, it may well be prudent to plead both possibilities in the alternative.
Firstly, the student may be an ’employee’ of the placement provider, especially if the student is paid. ‘Employee’ in the Equality Act has an extended meaning which includes a ‘worker’: see Employees, workers and beyond and Volunteers. The possibility of the student being an employee does not seem to have been considered in the Blackwood case. Maybe it was not relevant on the facts. If the student is an employee, then s.56(3) seems to exclude the ’employment services’ provisions (below) from applying, because s.39 or s. 40 applies.
If the student is not an ’employee’, the student should be covered under s.55 EqA on the basis that the placement provider is providing an ’employment service’. The definition of employment service in EqA s.56 includes “work experience (including work experience the duration of which is not agreed until after it begins)”, and also “making arrangements for the provision of” work experience. See too the Employment Code para 11.59, and below Technical points: Re-interpretation of EqA by Blackwood case.
See also Work experience>Slightly less protection if not an employee?
Technical points: Type of reasonable adjustment duty
Even where the work experience is an ’employment service’, the reasonable adjustment duty on organisations providing work experience is similar to the duty for employment generally. In other words it is a duty where the particular individual is put at a disadvantage to make adjustments reasonable in the individual circumstances, rather than having a group aspect (see Employment services: Technical issues on reasonable adjustment duty). This is because under Sch 8 para 2 the duty is owed to an ‘interested disabled person’, which for an employment service consisting of work experience is defined in EqA Sch 8 para 16.
Technical points: Re-interpretation of EqA by Blackwood case
Before 2016 the coverage of discrimination by work placement providers was unclear if the student was not an ’employee’. The Equality Act s.56(5) appears to exclude a claim against the provider under the ’employment services’ provisions if the university has ‘power to afford access’ to the placement. This was so even if the student had no claim against the provider or university under the education provisions. However the Court of Appeal in Blackwood v Birmingham and Solihull Mental Health NHS Foundation Trust (2016) ‘re-interpreted’ the Equality Act to comply with the EU Framework Employment Directive, so that students discriminated against by a work placement provider are not left without a claim. 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.”
Garrard case
Even before Blackwood, s.56(5) was held not to exclude a claim to an employment tribunal in the case of a postgraduate training programme for doctors, where the court said those on the course were not students:
Garrard v Governing Body of the University of London, County Court [2013] EqLR 746
The case concerned an alleged failure to make reasonable adjustments in relation to a postgraduate training programme for doctors. Successful applicants were employed by the NHS Trust where the training took place. The London Deanery administered interviews, and was argued to be part of the University of London. The County Court held it had no jurisdiction to hear a complaint against the University of London under Part 6 Equality Act (education). The programme was vocational training within Part 5 Equality Act. S.56(5) did not exclude that because those on the course were not ‘students’ of University of London, and anyway the London Deanery’s role was so circumscribed that it did not have power to afford access to the training.
Good practice guide
In 2002 the DfES published a good practice guide for further and higher education institutions: Providing Work Placements for Disabled Students (pdf, dera.ioe.ac.uk).
