This page outlines the disability discrimination rules on provision of ’employment services’. These include eg. some vocational guidance, training for employment, and services for finding people employment. Claims go to the Employment Tribunal rather than County Court.
Outline
Under the rules on ’employment services’ in EqA s.55-56, some claims that would normally be covered by the general rules on service providers (or might not be covered at all) are treated as employment claims and go to the employment tribunal.
Examples of employment services are –
- services for finding people employment, such as employment agencies and headhunters;
- services for supplying employers with people to do work; and
- (very broadly) unless within the education provisions or normal employment provisions:
- work experience;
- training for employment, but not eg by an FE college or university;
- vocational guidance, presumably including careers advice.
See below What are employment services?
Where an employment ‘agency’ acts not as an agent, but as an employer supplying an individual to do work, the contract worker rules will apply instead.
An instructor in a CV writing workshop run by a training company makes fun of the speech of a student who stammers. This may be unlawful discrimination in the provision of an employment service (eg harassment or direct discrimination). Any claim would probably go to an Employment Tribunal.
A recruitment agency restricts the interview opportunities it offers to a client who stammers, looking for a permanent job. This may be unlawful discrimination. Any claim would go to an Employment Tribunal.
What is different about employment services?
Differences: Claims go to employment tribunal
If something were not an employment service, it would normally be covered by the Equality Act rules on provision of services, for which claims go to the County Court (in England and Wales). However, claims on employment services go to the employment tribunal. This is generally seen as easier than having to go to the County Court.
Differences: Reasonable adjustments
A smaller difference is that the reasonable adjustment duty for some employment services is not quite the same as for ‘normal’ services, though often it will make no difference in practice.
For employment services classified as ‘vocational services’ (eg training for employment) it seems that the reasonable adjustment duty is ‘anticipatory’, like for service providers generally. This means the provider should consider reasonable adjustments even in advance of a particular disabled person presenting themself, and one looks at ‘group’ disadvantage rather the disadvantage of that individual. For work experience the reasonable adjustment duty is like that which applies in employment, focused on the individual. For other providers of employment services the duty may be largely similar to that for vocational services, but this is unclear.
There is some uncertainty and disagreement on what the rules are. If you really want a technical discussion, see Employment services: Technical issues on reasonable adjustment duty.
Differences: Enquiries about health and disability
The s.60 restriction on enquiries about health or disability applies to employment services but not to other services. Under s.60(9) EqA “work” includes the “provision of an employment service”.
What are ’employment services’?
The most important examples of employment services (s.56 EqA) are –
- services for finding people employment;
- services for supplying employers with people to do work; and
- sometimes the following (but there are exceptions):
- work experience, see separate pages Work experience and Work placements related to education courses;
- training for employment, particularly where not accessed through a school, university or FE college. Below Training for employment, and vocational guidance;
- vocational guidance (presumably including careers advice), particularly where not accessed through a school, university or FE college. Below Training for employment, and vocational guidance;
The Employment Code expands on services for finding people employment:
“services for finding people employment, such as employment agencies and headhunters. It also includes the services provided by, for example, Jobcentre Plus, the Sector Skills Council and intermediary agencies that provide basic training and work experience opportunities such as the Adult Advancement and Careers Service and other schemes that assist people to find employment”.
Para 11.59, Employment Code.
Making arrangements for or providing facilities for these are sometimes also covered (s.56(2)(c) and (8)).
Where an employment ‘agency’ acts not as an agent, but as an employer supplying an individual to do work, the contract worker rules will apply instead.
There is more detail on the meaning of ’employment services’ in EqA s.56, para 11.59 of the Employment Code, and my page Employment services: Technical issues on reasonable adjustment duty.
Training for employment, and vocational guidance
The Employment Code gives as examples of vocational training covered as employment services under s.55:
“providing classes on CV writing and interviewing techniques, training in IT/keyboard skills, providing work placements and literacy and numeracy classes to help adults into work.”
Para 11.60, Employment Code. Similar is para 190 of the EqA Explanatory Notes.
However training or guidance falling within the education provisions in EqA Part 6 – eg a vocational course at an FE college or university – is likely to stay within those provisions rather than being an employment service. In more detail, training for employment or vocational guidance (doubtless including careers advice) is not within the employment services provisions if –
- it is covered by the general employment provisions, eg if it is provided by the person’s employer (s.56(3) EqA), or
- in summary, it is for pupils of a school, or for students of a university or further education college, where the school, university or college has power to afford access to the training or guidance (s.56(4)(5) EqA). This provision has been considered by the Court of Appeal in Blackwood in relation to work experience: see Work placements related to education courses.
As regards the first bullet point, it seems a person’s employer will be covered by the normal employment discrimination rules as regards training it provides, rather than by the rules on employment services. Accordingly the normal employers’ reasonable adjustment duty will apply, rather than the ‘anticipatory’ duty on providers of vocational services (above). Often however a third party training provider is involved, in which case one needs to consider the particular facts.
As regards the second bullet point, generally the Equality Act’s education provisions (in Part 6) should apply here to services of the school, FE college or university, so that the claim goes to the County Court rather than the employment tribunal. (This is consistent with the example at para 3.58 of the EHRC Technical guidance on further and higher education, 2012, which says vocational training and guidance provided at the FE college in that example would fall within the Part 6 education provisions.)
An independent careers adviser accessed through a school or university discriminates against a student, eg by failing to make reasonable adjustments. Assuming the adviser is not acting as agent of the university etc, on the face of it this would not be an employment service. That means a claim against the adviser would go to the County Court rather than the Employment Tribunal, treating the adviser as a ‘normal’ service provider.
However this is not quite clear. Following the Blackwood case, if it were provision of work experience rather than careers advice, there should be an employment tribunal claim here. But it might be argued the Blackwood decision does not apply because this decision was based on the student otherwise not having a claim – whereas here the student would have a claim against the careers adviser under the normal rules on services.
Case
A rather technical case where the exclusion in s.56(5) did not apply because those on the course were not ‘students’ of the university:
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.
