Blackwood v Birmingham and Solihull NHS Trust

The Court of Appeal considered whether an allegation of discrimination arising during a university-arranged work placement falls within Part 5 of the Equality Act 2010 (employment-related discrimination, specifically sections 55 and 56) or is displaced by Part 6 (education-related discrimination, specifically section 91). The central legal questions were the meaning and effect of section 56(5) (the exclusion for training for students of an institution to which section 91 applies), the scope for indirect liability under sections 109–112, and the extent to which agency concepts can be stretched to transfer primary liability to universities.

The court held that the construction adopted by the ET and EAT (which treated section 56(5) as disapplying section 55 whenever the university had the "power to afford access" to the placement) would create a gap in protection for students subjected to discrimination by placement providers. That construction could not be sustained. The court rejected a universal characterisation of placement providers as agents of universities and emphasised that agency must be applied in its ordinary common law sense. Applying a purposive / EU-conform interpretation, the court read the statutory scheme so as to preserve a remedy against a placement provider under section 55 where the discriminatory acts are those of the provider during the placement, while claims about access remain for section 91 and the County Court.

Background and parties: The appellant (a student nurse) alleged sex discrimination after a university-arranged placement was withdrawn by the NHS Trust. She sued in the Employment Tribunal under section 55 of the Equality Act 2010. The Trust and the University raised the question whether the ET had jurisdiction or whether the complaint fell within Part 6 and thus the County Court.

Procedural history: The Employment Tribunal (Employment Judge Kearsley) dismissed the claim for want of jurisdiction. The Employment Appeal Tribunal (HH Judge Eady QC) dismissed the appeal (reported [2015] ICR 308). The Court of Appeal heard the appeal from the EAT.

Nature of the claim / relief sought: A claim for discrimination in connection with provision of vocational training / work experience brought under section 55 of the Equality Act 2010.

Issues framed by the court:

• Whether section 56(5) disapplies section 55 in relation to student vocational training where the university has "power to afford access", thereby ousting ET jurisdiction.
• Whether indirect liability provisions (sections 109–112) or an expansive agency analysis could ensure a remedy against a placement provider under Part 6.
• Whether the statute should be read so as to give effect to the EU Directives concerning vocational trainees.

Court's reasoning and conclusions: The court found that the ET/EAT reading of section 56(5) would create a lacuna: students would lack a primary remedy against placement providers for discriminatory acts during placements, and the university-only remedy under section 91 would not capture provider misconduct. The court rejected submissions that every placement provider should be treated as the university's agent for this purpose, emphasising that agency must follow ordinary common-law principles and cannot be universally implied. Applying a purposive / EU-conforming interpretative approach (Marleasing and related authorities), the court read the statutory scheme so as to preserve a primary remedy under section 55 against a placement provider for acts done by the provider during the placement, while claims about access to placements remain claims against the university under section 91. The Court allowed the appeal and remitted the matter to the Employment Tribunal for determination on the merits.

Wider context: The court noted the general importance of clarity for educational courses with vocational placements (for example, nursing, medicine, teaching) and that the statutory construction should avoid depriving students of protection against discriminatory conduct by placement providers.

Appeal allowed. The Court of Appeal concluded that section 56(5) should not be read so as to deprive students of a remedy against a placement provider for discriminatory acts occurring during a placement. Agency cannot be universally implied; sections 109–110 apply only where ordinary agency principles are satisfied. The matter was remitted to the Employment Tribunal to determine the merits.

Employment Tribunal (Birmingham, Employment Judge Kearsley) dismissed claim for want of jurisdiction (reasons promulgated 13 November 2013). Appeal to Employment Appeal Tribunal (HH Judge Eady QC) dismissed (22 September 2014) (reported [2015] ICR 308). Appeal to Court of Appeal allowed ([2016] EWCA Civ 607) and case remitted to the Employment Tribunal.