Nwabueze v University of Law Ltd & Ors

The Court of Appeal dismissed the appellant's appeal against the Employment Appeal Tribunal's refusal of his appeal from an employment tribunal strike-out. The primary legal issue was forum and jurisdiction under the Equality Act 2010: whether the University of Law Ltd was a "qualifications body" within the meaning of s 54 or a university within s 91 so that section 54(4)(c) operated to displace qualification-body status.

Having reviewed the statutory scheme (including Part 5 and Part 6, s 53, s 54 and s 91) and the documents showing change of corporate status, degree-awarding permissions and registration, the court held that the University of Law Ltd is a university within the meaning of s 91 and that s 54(4)(c) displaces its status as a qualifications body "in so far as" it is the governing body of a s 91 institution. Because that displacement removes the employment tribunal's jurisdiction, the tribunal was right to strike out the claim and the EAT was right to refuse the appellant's appeal. The court also refused the appellant's application for anonymity in this appeal, applying the general principle of open justice.

Background and parties: The appellant, a student who studied for the Master of Laws in Professional Legal Practice in 2017, alleged discrimination by the University of Law Ltd and six members of its staff and issued proceedings in the employment tribunal. The respondent applied to strike out on the ground that the defendant was a university and that claims under the education provisions of the Equality Act 2010 fell within the exclusive jurisdiction of the county court.

Procedural history: The employment tribunal (Employment Judge Davidson) struck out the claim on 13 July 2018. The appellant appealed to the Employment Appeal Tribunal where Her Honour Judge Eady QC dismissed the appeal under rule 3(10) of the Employment Appeal Tribunal Rules 1993 for lacking a reasonably arguable question of law. Permission to appeal to the Court of Appeal was granted by Arnold LJ; the Court of Appeal heard the appeal on 10 November 2020 and delivered judgment on 13 November 2020.

Issues framed:

• Whether the University of Law Ltd qualified as a "university" within section 91 of the Equality Act 2010 such that the governing body was excluded from the definition of a "qualifications body" under s 54(4)(c).
• The meaning and effect of the phrase "in so far as" in s 54(4) when applied to s 54(4)(c): whether a body could be both a qualifications body and the governing body of a s 91 institution at the same time, or whether one status displaces the other.
• An ancillary application for anonymity in the Court of Appeal.

Key facts and evidence: The court accepted documentary material showing the College of Law was incorporated by Royal Charter in 1975, obtained power to award degrees in 2006, and that a company changed its name to The College of Law Limited and later to University of Law Ltd with Department for Business, Innovation and Skills approval (letter of 12 November 2012) and an order of the Privy Council dated 26 November 2012 conferring power to award taught degrees for six years. The register of higher education providers lists the University of Law Ltd.

Reasoning: The court explained the statutory structure of the Equality Act 2010 which separates jurisdictional fora for employment discrimination (Part 5, s 120) and education discrimination (Part 6, s 114(1)). The court considered prior authorities relied on by the appellant (notably Burke and Blackwood) but found them not to determine the present statutory question. Turning to s 54(4)(c), the court held that in context the provision operates as a binary displacement: where an authority or body is the governing body of a s 91 institution (a university or other higher education institution), it is not a qualifications body "in so far as" that status applies. Allowing a dual status would create impractical and chaotic divisions of claims by module or function. On anonymity the court applied the principle of open justice and refused the appellant's request because no clear and cogent grounds were shown.

Outcome and order: The appeal was dismissed. The appellant was ordered to pay the respondents' costs in the Court of Appeal, summarily assessed at 5,000 plus VAT.

Appeal dismissed. The Court of Appeal held that the University of Law Ltd is a university within the meaning of section 91 of the Equality Act 2010 and that section 54(4)(c) operates to displace qualification-body status where a body is the governing body of a s 91 institution; consequently the employment tribunal lacked jurisdiction to hear the claim. The appellant's application for anonymity was refused for lack of clear and cogent grounds.

Employment Tribunal: claim struck out by Employment Judge Davidson (13 July 2018). Employment Appeal Tribunal: appeal dismissed by HHJ Eady QC under rule 3(10) UKEATPA/0734/18/JOJ. Permission to appeal to the Court of Appeal granted by Arnold LJ. Court of Appeal judgment [2020] EWCA Civ 1526 dismissing the appeal.