Can a Discrimination Claim be Brought Against a Work Placement Provider?
The Court of Appeal has held that an employment tribunal can hear a discrimination claim brought by a student directly against a work placement provider.
This case is important for all work placement providers, education providers, or students involved in courses where the education provider arranges vocational training for its students at another institution.
The Law
The Equality Act 2010 (the Act) implements the various EU anti-discrimination directives which, broadly speaking, aim to ensure equal treatment and include provisions to ensure equal opportunities in relation to employment, education, and vocational training.
Part 5 of the Act prohibits discrimination at work and Part 6 prohibits discrimination in education. Claims under Part 5 are generally heard in the Employment Tribunal and claims under Part 6 are generally heard in the County Court.
Section 55 (which falls within Part 5) protects individuals against discrimination by an 'employment service provider' (which includes a provider of vocational training). Section 56 provides that the protection will not apply in relation to training for students to which an educational institution covered by section 91 (such as a further or higher education provider) has the power to afford access.
Section 91 (which falls within Part 6) prohibits discrimination by the identified educational institutions, including discrimination in the way such an institution affords access to any benefit, facility or service.
The Facts
In Blackwood v Birmingham & Solihull Mental Health NHS Foundation Trust, Miss Blackwood was a student at Birmingham City University (the University) and as part of her course in mental health nursing she was required to undertake work placements. The University was responsible for identifying and allocating the placements and it allocated her a placement with the Birmingham & Solihull Mental Health NHS Foundation Trust (the Trust).
Miss Blackwood expressed concern to the Trust about her ability to undertake the shift pattern required for the placement due to her childcare responsibilities, and the placement was subsequently withdrawn on the basis that the Trust believed that she was not prepared to work nights and weekends.
Miss Blackwood brought a claim of indirect sex discrimination against the Trust in the Employment Tribunal.
The Employment Tribunal (ET) and the Employment Appeal Tribunal (EAT)
The ET held that it did not have jurisdiction to hear Miss Blackwood's claim against the Trust on the basis that her claim fell within the section 56 exemption, as the University had the power to afford access to the training in question. It considered that Miss Blackwood should have brought her claim against the University in the County Court. On appeal the EAT agreed with this conclusion, but gave Miss Blackwood permission to appeal to the Court of Appeal.
The Court of Appeal (CA)
The CA agreed that a literal interpretation of section 56 of the Act appeared to prevent Miss Blackwood from bringing a tribunal claim against the Trust under section 55. It also noted that, if such an interpretation were applied, Miss Blackwood would not be able to bring a claim against the Trust in the County Court under section 91, but only against the University.
The CA noted that this was particularly unsatisfactory as, if the Trust was responsible for the discrimination, then even if a County Court claim was brought, it would also be very difficult to impose liability on the University under any of the provisions of the Act. The CA was therefore concerned that this interpretation resulted in a gap in protection for students on work placements as they would have no direct remedy against the work placement provider who had allegedly discriminated against them and little scope for any remedy.
The CA noted that the relevant EU directives intended students on work placements to be protected from discrimination by work placement providers, and also reasoned that it was unlikely that Parliament had intended to leave such a gap in the protection afforded to students as the gap had not existed in the protection afforded by the pre-Equality Act legislation which the Act had been intended to consolidate.
Applying the Marleasing principle (which requires national courts to interpret national laws, so far as is possible, in order to achieve the result pursued by the relevant Directive) the Court therefore reworded section 56 so that the exemption applied only to the extent that a student who has suffered discrimination was able to make a claim under section 91 in relation to that discrimination.
The CA subsequently remitted the case back the ET for a determination of the merits of Miss Blackwood's claim.
Best Practice
The effect of the CA's rewording is to allow students on work placements who consider that they have been discriminated against by their work placement provider, to bring a claim directly against that provider in the ET.
However, where a claim is about the access to work placements provided by a college or university, this claim must still be brought against the educational institution in the County Court.
This case will be particularly significant to schools and hospitals as it is a standard course requirement for those training to be teachers, doctors and nurses that they undertake a vocational placement and such organisations are therefore at greater risk of claims.
In order to minimise the risk of discrimination claims, organisations who take on students on work placements should ensure that their equal opportunities policies apply to such students, as well as to their staff, and ensure that the placement arrangements do not discriminate against those with protected characteristics.