Blackwood v Birmingham and Solihull Mental Health NHS Foundation Trust

Section 56(5) of the Equality Act 2010 removes training or guidance from the employment-services regime where a university has the ability to place its students on that training. The university need not be able to act without another body’s consent, and a placement provider’s power to terminate the placement does not alter the position.

The claim therefore falls within the education provisions rather than the Employment Tribunal’s jurisdiction under the employment provisions. That allocation does not create a lesser form of protection and is compatible with effective enforcement of EU discrimination rights.

The Claimant was a student undertaking a higher-education nursing course at Birmingham City University. As part of the course, she undertook a vocational placement with the Respondent, which was withdrawn because she could not work late or night shifts owing to childcare responsibilities.

She brought an indirect sex-discrimination claim in the Employment Tribunal. The Tribunal decided, as a preliminary jurisdictional issue, that section 56(5) of the Equality Act 2010 placed the matter within the education regime under section 91 and dismissed the claim. The central issues on appeal were the construction of “power to afford access”, the need for evidence before determining the jurisdictional issue, and compatibility with EU law.

1. Appeal dismissed. The Employment Tribunal had correctly concluded that it lacked jurisdiction under the employment provisions. The claim fell within the education provisions of the Equality Act 2010.
2. Section 56(5) is directed to the allocation of responsibility between the employment and education regimes. Where a university has power in respect of vocational training undertaken by its students, the training is treated as part of higher education and complaints are pursued under section 91, ordinarily in the county court rather than the Employment Tribunal (paras 49–52).
3. “Power to afford access” means the ability to do something in the relevant context. It does not require the university to be wholly unconstrained or able to act without obtaining another person’s consent. A university has the relevant power where it can put students into placements it has organised with the placement provider. The provider’s ability to terminate the placement does not detract from that power (paras 56–59).
4. The different enforcement routes under Parts 5 and 6 do not amount to a second-class protection. Domestic legislation may allocate equivalent discrimination rights to different courts or tribunals, provided that effective enforcement is available. The statutory scheme satisfied that requirement and was compatible with EU law (paras 50–52 and 60).
5. Employment Tribunals will ordinarily be better placed to hear evidence before determining preliminary jurisdictional issues. However, where no substantial factual dispute relevant to the statutory question has been raised, the Tribunal may determine the issue as a pure point of law. That unusual course caused no error here because the university’s ability to place the Claimant was not materially disputed (paras 46–48 and 61).
6. The decision below was upheld and the appeal dismissed. Permission was granted to appeal to the Court of Appeal (paras 62–64).

• Employment Appeal Tribunal: dismissed the appeal from the Birmingham Employment Tribunal’s preliminary jurisdictional decision.
• Birmingham Employment Tribunal: held that section 56(5) of the Equality Act 2010 excluded its jurisdiction and dismissed the claim. The reconsideration application was refused.