Naomi Owen looks at the recent decision from HHJ Eady QC in Blackwood v Birmingham and Solihull Mental Health NHS Foundation Trust [2014] UKEAT/0130/14/RN.

In this case the legislative framework at play was the interplay between the education and employment protections in the Equality Act 2010 (‘the Act’). S56(5) was the particular provision under the microscope, which provides that training or guidance covered by s91(within the education provisions of the Act) falls outside the employment services protection afforded by s55; it provides that s56 ‘does not apply in relation to training or guidance for students of an institution to which s91 applies in so far as it is training or guidance to which the governing body of the institution has power to afford access‘.

The Facts

Miss Blackwood brought a claim for indirect sex discrimination by the Respondent NHS (‘the NHS’), being an ’employment service provider’ as defined in s55 of the Act.  The Claimant was a student at Birmingham City University (‘BCU’), studying for a Diploma of Higher Education in Mental Health Nursing: this included a vocational placement with the NHS.  The Claimant, being a mother with young children, found herself unable to comply with the Respondent’s shift patterns: as a result, the Respondent withdrew her placement.

The Claimant claimed indirect sex discrimination against the NHS, and against BCU as the NHS’s agent.  BCU raised the jurisdictional point that, pursuant to s91 of the Act, it could only be sued in the county court.  In response to this argument, the Claimant withdrew her claim against BCU, but soldiered on against the NHS.

At first instance, the NHS raised the same jurisdictional point, that it could only be sued in the county court as it too fell within the s56(5) exception.   The ET interpreted the meaning of the phrase ‘power to afford access’ as BCU’s ability to initially place students on the relevant training.  It followed that this case fell outside the ET’s jurisdiction: the case was thus dismissed.

The Employment Appeal Tribunal Decision

After a failed application for reconsideration, the Claimant appealed to the EAT on 3 grounds (cited at para 13 of the EAT judgment)

1.     The ET erred in concluding that it had no jurisdiction to hear the claim;

2.     The ET erred in reaching its conclusion as to its lack of jurisdiction without first hearing evidence from the parties as to the true relationship between the NHS and the University; to have determined the preliminary issue without first resolving the evidential matters was an error of law;

3.      The ET erred in its interpretation of the Equality Act 2010, by reaching a conclusion inconsistent with the UK’s obligation under EU law.

HHJ Eady QC dismissed the appeal.  She found that the correct interpretation under s56(5) of ‘affording access’ was ‘likely to mean entry on to a placement‘ as opposed to establishing an ongoing power to provide continuing access (as submitted by the Claimant).  However, the real question that played on the judge’s mind was the meaning of ‘power’ in s56(5).  Her decision was to afford it a ‘real-world meaning’:

‘I do not find that section 56(5) only applies to cases where a university is wholly unconstrained in the placements it can make or where it has the ability to act without the need to obtain the consent from someone else…’power’ here means the ability to do something’. 

In this case, the judge found that the power held by BCU was to place students initially; the fact that the Respondent may have the power to terminate that placement would not detract from that initial power of BCU.

So in cases of vocational placements, prospective claimants will have to seek redress in the county courts.  In practice, this does not prejudice claimants such as Miss Blackwood; their rights are in no way second rate, it is simply a matter of getting the case before the right court.

Permission to appeal to the Court of Appeal

HHJ Eady QC did however grant permission to the Claimant to appeal to the Court of Appeal, given the novel point of law and lack of appellate authorities on this matter.  So we will have to watch this space to see if and how this argument develops…   

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