Work experience is covered by the Equality Act, under rules on ’employment services’ if not under the normal employment provisions. Further issues can arise if a university or other education provider is involved: see separate page on Work placements related to education courses.
Summary
- Employers providing work experience are liable for discrimination under the Equality Act. Claims normally go to the employment tribunal.
- Where an education provider has power to afford access to work experience, the education provider and the employer both have duties not to discriminate. Whether any claims go to the employment tribunal or county court will depend on the facts: see Work placements related to education courses.
If work experience arranged by an education institution
See Work placements related to education courses.
If not arranged by an education institution
If an education provider does not have power to afford access to the work experience, the employment provisions of the Equality Act apply to the work experience, so that any claims go the employment tribunal. The individual may be an ’employee’, or if not should have a claim under the ’employment service’ provisions. It may well be prudent to plead both possibilities in the alternative. On that and what follows, see also Work placements related to education courses>Technical points: ‘Employee’ or ’employment services’?
Firstly, the person may be an ’employee’ within s.83(2) EqA, especially if they are paid. In this case it seems the normal employment provisions apply to the relationship between employer and employee. The special ’employment services’ provisions are not needed, and are excluded by s.56(3) EqA. In deciding whether the student is an ’employee’, the wide definition in s.83(2) Equality Act applies. This definition includes a contract of employment, a contract of apprenticeship, or a “contract personally to do work”. So the student may well be an “employee” if he or she is paid, or if he or she otherwise has a contract with the company providing the placement. See Employees and beyond and Volunteers.
Even if the person is not an “employee”, the work experience should still fall within the employment provisions of the Equality Act, on the basis that it is an ’employment service’ within s.55 EqA. 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)”. The definition also includes “making arrangements for the provision of” work experience. See too the Employment Code para 11.59.
The normal prohibitions on discrimination will apply to work experience. Claims go to the employment tribunal. 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. 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.
Slightly less protection if not an employee?
Though it will not normally make a difference, there is potentially not quite as much protection in some cases for work experience as an ’employment service’ compared with where the claimant is an employee. This is because an ’employment service’ claim must fall within s.55 EqA, which is different from ss.39-40 EqA within which general employment claims must fall. In particular:
- s.55(2) says an employment service-provider must not “in relation to the provision of an employment service” discriminate in various ways, whereas s.39(2) just says an employer must not discriminate against one of its employees in various ways. There may sometimes be a dispute as to whether the discrimination is in relation to the provision of an employment service; and
- s.39(2)(b) says “in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service” whereas s.55(2)(b) just says “by not providing the service to B”. However s.55(2)(d) covers “subjecting B to any other detriment” which should be wide.
There may be other differences.
