The Court of Appeal has decided that a discrimination claim can be brought directly against a Trust by a university student working there on a work placement, by rewriting part of the Equality Act 2010.
Summary of legal position
Prior to this recent case, Blackwood v Birmingham & Solihull Mental Health NHS FT, a university student on a work placement could not bring a discrimination claim in the ET against the training provider (i.e. a Trust), where the student’s university had “power to afford access” to the training in question (referred to below as the “s56(5) exception”).
This meant that if a university student suffered discrimination from the provider during the work placement their only recourse against the provider was to prove that the provider was acting as an agent for the university and therefore liable for a claim. Such a claim had to be brought in the County Court, rather than the ET.
The Court of Appeal decided in this case that there were unlikely to be many scenarios when a provider of a work placement would be acting as an agent for the university when discriminating against a student and therefore the provider would escape liability. The Court of Appeal considered this to be an unsatisfactory and unintended gap in the legal protection provided by the
Equality Act 2010 (EqA).
To plug the gap, the Court of Appeal has written words into section 56(5) of the EqA, to allow a student to bring a discrimination claim in the ET against his/her training provider in respect of unfavourable treatment that occurs during the work placement.
Miss Blackwood (B) was a student at Birmingham City University (the University), studying mental health nursing. In November 2012, she was allocated a clinical placement at Birmingham & Solihull Mental Health NHS FT (the Trust) as part of her course.
B attended the first day and explained to her manager that she would have difficulty working night shifts and weekends because of her child-care responsibilities. The placement was withdrawn by the Trust because B could not comply with its shift patterns and as this was apparently incompatible with the requirements of the university course/NMC.
B brought a claim of indirect sex discrimination under s55 of the EqA against the Trust. B also brought an ET claim against the University but this was withdrawn when the University contested jurisdiction.
ET and EAT decisions
Both the ET and EAT held that the ET did not have jurisdiction to hear a claim against the Trust, as the student had recourse against the University in the County Court – the s56(5) exception.
B appealed to the Court of Appeal.
Court of Appeal’s decision
The Court of Appeal upheld B’s appeal.
The Court considered:- the case law; previous protection under pre-EqA legislation; as well as the EU Discrimination Directive. Having done so, the Court concluded that as this same protection from discrimination existed in pre-EqA legislation (Sex Discrimination Act 1975) and in the EU legislation, it could not have been the intention of the UK parliament that this gap in protection for students under the EqA should exist.
Taking that into account and the fact that the Court of Appeal was required to interpret UK law insofar as possible in line with EU law, the Court determined it was necessary to write its own words into section 56(5) of the EqA, to provide the necessary protection. The Court of Appeal also remitted the case back to the ET for a determination on the merits of B’s claim.
This is a significant decision from the Court of Appeal for any Trusts and other organisations that provide vocational placements for students of a university/educational institution.
The decision extends the level of discrimination protection for students and therefore increases the work placement providers’ risk of facing a discrimination claim.
Consequently, care should be taken and legal advice obtained, if necessary, by vocational placement providers when dealing with students and importantly when taking material steps in relation to them, such as ending or altering their placements.
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