Blackwood v Birmingham & Solihull Mental Health NHS Foundation Trust

Section 56(5) of the Equality Act 2010 does not exclude a claim under section 55 where a work-placement provider allegedly discriminates against a student during the placement. Construed consistently with EU equality law, the exclusion prevents overlap only where the discrimination is actionable against the university under section 91.

A complaint about the university’s provision of, or discriminatory access to, a placement falls under Part 6 and belongs in the County Court. A complaint about discrimination by the provider in the course of the placement ordinarily falls under Part 5 and belongs in the Employment Tribunal. Agency cannot be artificially assumed: it depends on ordinary common-law principles.

The appellant was studying mental-health nursing at a university. The university arranged a clinical placement with the respondent NHS trust. The trust withdrew the placement shortly after the appellant explained that childcare responsibilities made night and weekend shifts difficult. She alleged indirect sex discrimination.

The Employment Tribunal held that section 56(5) of the Equality Act 2010 excluded its jurisdiction because the university had power to afford access to the placement. The Employment Appeal Tribunal, in a decision reported at [2015] ICR 308, dismissed her appeal.

The central issue was whether section 56(5) required a claim concerning discriminatory treatment by a placement provider to be brought under the education provisions in the County Court, or whether the provider remained answerable under Part 5 in the Employment Tribunal.

1. Appeal allowed unanimously. The Employment Appeal Tribunal had erred in holding that section 56(5) excluded the Employment Tribunal’s jurisdiction. The appeal was remitted to the Employment Tribunal to determine the merits.

2. Section 91 concerns what a university itself does in affording a student access to a benefit, facility or service. In the placement context, that includes arranging and, where necessary, maintaining access to the placement. It does not make the university responsible, merely by affording access, for discriminatory acts committed by the third-party provider in the student’s day-to-day placement.

3. A natural reading of section 56(5) would therefore create a gap: the student could not claim against the provider under section 55, yet section 91 would not ordinarily provide a claim for the provider’s conduct. That result was incompatible with the protection required by the Equal Treatment Directive, as persuasively recognised in Fletcher [2005] IRLR 689.

4. Applying the EU-conforming construction principle, section 56(5) was to be read as disapplying section 55 only to the extent that the student was entitled to bring a claim under section 91 concerning the discrimination. That construction preserved the statutory purpose of avoiding overlap, followed the substance of the predecessor legislation, and went with the grain of the Equality Act 2010. Allocation to a particular forum was not a fundamental feature capable of justifying the loss of substantive equality protection.

5. The court rejected an alternative solution which would deem every placement provider to be the university’s agent. Sections 109 and 110 apply ordinary common-law agency principles. A university and a hospital or school will commonly be independent principals, and the university will not control the provider’s day-to-day treatment of the student.

6. Accordingly, discriminatory access to a placement is ordinarily a section 91 claim against the university in the County Court. Discrimination by the provider during the placement is ordinarily a section 55 claim in the Employment Tribunal. Agency, inducement and knowing assistance may create further liability on the facts, but do not alter that basic division.

• Court of Appeal (Civil Division) Allowed the appeal and remitted the discrimination claim to the Employment Tribunal: [2016] EWCA Civ 607.
• Employment Appeal Tribunal HH Judge Eady QC dismissed the appellant’s appeal, holding that section 56(5) of the Equality Act 2010 excluded the Employment Tribunal’s jurisdiction: [2015] ICR 308.
• Employment Tribunal, Birmingham Held that the university had power to afford access to the placement and dismissed the claim for want of jurisdiction.