Discrimination claims for employment services under the Equality Act 2010 (EqA) go to the employment tribunal rather than the county court. Examples include vocational guidance and training for employment (perhaps unless accessed through a university etc), and services for finding people employment.
Outline
The effect of the rules on “employment services” in EqA s.55-56 is that some claims that would normally fall within the general rules on service providers – or that might not be covered by the EqA 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
- the following unless perhaps(!) a university/FE college (below) or other Part 6 education provider has power to provide access to them, or unless already within the normal employment provisions (below):
- work experience (separate page);
- training for employment;
- vocational guidance, presumably including careers advice.
See below What are employment services?
A couple of examples of employment services:
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 harassment in the provision of an employment service. Any claim would probably go to an employment tribunal.
Note: It may be different (below) if the course is accessed through a university or other Part 6 education body.
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.
“Agency” acting as employer
Sometimes an employment “agency” is legally the employer of the individual, whom it supplies – directly or indirectly – to do work for X co, rather than (legally) acting as agent for X co who is the individual’s employer. In that case the agency should be liable under the normal rules as an “employer”, and X co should be liable under the contract worker rules.
What is different about employment services?
Differences: Claims go to employment tribunal
Providers of services to the public are normally within the EqA Part 3 rules (Services), for which claims go to the county court (or sheriff court in Scotland). Employment services, however, fall within EqA Part 5 (work), and claims go to the employment tribunal, which is generally seen as preferable to the county court.
Some services – particularly work experience – might not be within Part 3, and so might not be within the EqA at all if they were not employment services within Part 5.
Differences: Reasonable adjustments
For work experience and perhaps some other employment services, the reasonable adjustment duty is focused on the individual claimant, in the same way as the duty on employers. However for employment services which are “vocational services”, and perhaps some other employment services, the reasonable adjustment duty is anticipatory, like the normal duty on service providers. In more detail:
Some employment services are defined as “vocational services“, eg training for employment, vocational guidance, and services for finding employment. Here the reasonable adjustment duty is “anticipatory” (Reasonable adjustments by service providers: rules>”Anticipatory” versus individual duty). That is the type of reasonable adjustment duty applicable to service providers generally. What is reasonable is not assessed only by reference to the particular claimant. Indeed the provider should consider reasonable adjustments even in advance of a particular disabled person presenting themself. Even though this service-provider-style duty applies, claims on vocational services go to the employment tribunal. More on vocational services and the reasonable adjustment duty: Employment services: Technical issues on reasonable adjustment duty>”Vocational services”.
For providers of other employment services apart from work experience, the reasonable adjustment duty may also be anticipatory, or it may be more focused on the individual claimant like the duty on employers. This is unclear. More: Employment services: Technical issues on reasonable adjustment duty>Other employment services.
For providers of work experience, the reasonable adjustment duty is like the duty on employers, focused on the individual: Work experience>Assuming the EqA employment provisions apply….
Differences: Enquiries about health and disability
The s.60 EqA restriction on enquiries about health and disability applies to providers of employment services, but not 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 (defined more fully in s.56 EqA) are –
- services for finding people employment
- services for supplying employers with people to do work
- the following unless perhaps(!) a university/FE college (below) or other Part 6 education provider has power to provide access to them (or unless already covered by the employment provisions):
- work experience, see separate pages Work experience and Work placements related to education courses
- training for employment, below Training for employment, and vocational guidance
- vocational guidance including careers guidance, below Training for employment, and vocational guidance
- making arrangements for work experience, training for employment, or vocational guidance.
On services for finding people employment, the Employment Code says :
“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.
Where an employment “agency” acts not as an agent, but as an employer supplying an individual to do work, see above “Agency” acting as employer.
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.
Vocational guidance or training for employment
Employment services include the provision of vocational guidance or vocational training (s.56(a)(b)). Under s.56(6) vocational training is defined as meaning (a) training for employment, or (b) work experience (dealt with separately on Work experience). However this is subject to exceptions, below, mainly related to education providers within Part 6 EqA.
Vocational guidance includes careers guidance (para 11.59 Employment Code).
The Employment Code gives some examples of “vocational training” covered as employment services:
“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
“Training” includes “facilities for training” (s.56(8)).
Exceptions relating to vocational guidance and training for employment
If covered by other employment provisions
Under s.56(3) EqA, training for employment or vocational guidance is not an employment service if it is covered by another provision in EqA Part 5 (work), normally the general employment provisions in ss.39-40. For example training by the claimant’s employer should be within these general provisions, though see below if the employer contracts it to a third party provider.
Discrimination in relation to employment services is prohibited by s.55, in EqA Part 5. However, there is no need for something to be an employment service – so it isn’t, by virtue of s.56(3) – if already covered elsewhere in Part 5.
As to the effect of this s.56(3) exception:
- Irrespective of whether the exception applies, the claim will go to an employment tribunal, as any claim within Part 5 goes to there.
- However, only if it is an employment service will the reasonable adjustment duty (above) be anticipatory, as a “vocational service”.
There may be a third party training provider arranged by the employer. If relevant, probably as to the type of reasonable adjustment duty, one would need to consider on the facts whether any discrimination by the training provider relates to an employment service, or falls within the general employment provisions.
Education providers within Part 6
In summary:
- S.56(4)(5) EqA, on their wording, say that training or guidance for students of a university, FE college or school within EqA Part 6 (education) is not an employment service in so far as the university etc has “power to afford access” to the training or guidance.
- However, before Brexit, the Court of Appeal in Blackwood reinterpreted s.56(5) – on universities and FE colleges – to comply with EU law. The claimant would otherwise have been left without a claim for discrimination by her work experience provider. The court said the test was not whether the university etc has “power to afford access”, but whether the student is entitled to make a claim as regards that discrimination under s.91 EqA (the Part 6 provision prohibiting discrimination by universities and FE colleges). There is some doubt whether this reinterpretation still applies. See below Technical note: Exception relating to education providers.
On either basis, if the training for employment or vocational guidance is provided by the university etc itself, it should fall within EqA Part 6. So claims go to the county court (or relevant education tribunal for a school), rather than to the employment tribunal.
A discrimination claim by a student against a unversity’s own careers service should go to the county court (or sheriff court in Scotland), like discrimination claims against the university generally. This is because s.56(5) excludes it from being an employment service.
Note: The position may possibly be different if someone other than the university (or another Part 6 education provider) had “power to afford access” to the service – if the reinterpretation is held not to apply.
The position is more difficult if the service is provided to a student by a third party, and the university has power to afford access to it. I discuss this below, in Technical note: Exception relating to education providers. In particular, it may be unclear whether a claim goes to the county court or to an employment tribunal, as illustrated by the following example:
An independent careers adviser to which a university has power to afford access discriminates against a student, eg by failing to make reasonable adjustments. On the wording of s.56(5), this is not an “employment service”. But the student would likely have a claim against the adviser in the county court anyway, under the EqA Part 3 service provider provisions.
However, if the Court of Appeal’s reinterpretation applies, then assuming the independent adviser is not liable for the relevant discrimination under EqA Part 6 (eg if it acts as the university’s agent so that s.110 makes both it and the university liable under Part 6), it seems the careers advice would be an employment service, so any claim for discrimiation should go to the employment tribunal.
However, it is unclear whether the reinterpretation still applies, particularly where – as is likely here – even without the reinterpretation the student would still have a claim to the county court.
Note: See below Technical note: Exception relating to education providers.
Garrard case
A rather technical case where the exception in s.56(5) EqA was held not to apply because those on the course were not “students” of the university is summarised at Work placements related to education courses>Garrard case.
Technical note: Exception relating to education providers
This technical note relates to Vocational guidance or training for employment, above. The exceptions discussed here, in s.56(4)(5) EqA, also apply to work experience, as discussed at Work placements related to education courses.
There is a shorter summary with examples based on the following above: Vocational guidance or training for employment>Education providers within Part 6.
According to the wording of s.56(4)(5) EqA, broadly, training for employment or vocational guidance for students/pupils of a university, FE college or school within Part 6 of the EqA (education) is not an employment service in so far as the university, college or school has “power to afford access” to the training or guidance.
Claims by students against their university or FE college are normally under Part 6 of the EqA, and so go to the county court (sheriff court in Scotland). Claims against schools under Part 6 go the relevant education tribunal. Perhaps the general idea of the exceptions in s.56(4)(5) is that the same should apply to training for employment or vocational guidance, if students access the service through their Part 6 education provider.
That is all very well if the discrimination is by the Part 6 education provider. If so, the effect of s.56(4)(5) is that the claim against the education provider is to the county court etc under Part 6, rather than to an employment tribunal as an employment service.
But what if the discrimination is by a third party, to whose service the education provider had power to afford access? This happened in a claim about “work experience” to which these exceptions also apply, namely Blackwood v Birmingham and Solihull Mental Health NHS Foundation Trust (see further Work placements related to education courses>Uncertainty after Brexit). The claimant in Blackwood was a student who accessed the work experience through her university. If the s.56(5) exception applied, she would be left with no EqA claim at all for discrimination by her work placement provider. This would have breached EU law.
The Court of Appeal in Blackwood held that she could make an employment tribunal claim against her work placement provider. The work experience was an employment service despite s.56(5). The court reinterpreted s.56(5) EqA to comply with EU law. Under that provision as reinterpreted, training or guidance for students of a university or FE college – ie a body to which s.91 EqA applies, in Part 6 – is not an employment service to the extent that the student is entitled under s.91 EqA to make a claim as regards that discrimination. Therefore s.56(5) did not exclude the claimant’s work experience from being an employment service, because she had no claim under s.91 for the discrimination by the work placement provider.
S.56(5) relates to universities and FE colleges. However, the court might well have decided the same for s.56(4), on schools, had it been relevant to the case. (For schools the claim would be under s.85 EqA rather than s.91).
As well as work experience, the Court of Appeal also expressed its reinterpretation as applying to training for employment, and vocational guidance. However:
- For employment services other than work experience, there should – normally at least – be a county court claim under the EqA Part 3 service provider provisions, if it is excluded from being an employment service. This may weaken the argument for a reinterpretation, at least if there is an alternative claim under Part 3.
- Furthermore there is some doubt whether the Blackwood reinterpretation continues after the end of 2023: Work placements related to education courses>Uncertainty after Brexit.
Another layer is that one body may be acting as agent for, or be liable for inducing etc or helping discrimination by, the other: see in the context of work experience Work placements related to education courses>Ancillary liability. For example, if the employment service provider discriminates as an agent of the university, there may be a claim under EqA Part 6 against both the provider (under s.110) and against the university. See also Work placements related to education courses>Which court?.
Briefly, the position is unclear if the effect of the wording of s.56(4)(5) EqA (without the reinterpretation in Blackwood) is that there is no claim for the discrimination under EqA Part 6.
There is a shorter summary with examples based on the following above: Vocational guidance or training for employment, above>Education providers within Part 6.
