Blackwood v Birmingham & Solihull Mental Health NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Lord Justice Lewison,Lord Justice Patten |
| Judgment Date | 23 June 2016 |
| Neutral Citation | [2016] EWCA Civ 607 |
| Docket Number | Case No: A2/2014/3461 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 June 2016 |
[2016] EWCA Civ 607
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM The Employment Appeal Tribunal
HH Judge Eady QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Patten
Lord Justice Lewison
and
Lord Justice Underhill
Case No: A2/2014/3461
Christopher Milsom and Rachel Barrett (instructed by Bailey Wright & Co) for the Appellant
Edward Pepperall QC and Jonathan Meichen (instructed by Birmingham & Solihull Mental Health NHS Foundation Trust – Legal Department) for the Respondent
Hearing date: 5 May 2016
Approved Judgment
INTRODUCTION
The Appellant claims to have suffered sex discrimination in connection with a work placement which she was offered as part of her studies to become a nurse, and she has brought proceedings in the Employment Tribunal. The issue raised by this appeal is whether the ET had jurisdiction to entertain her claim or whether, as it and the Employment Appeal Tribunal both held, she should have proceeded in the County Court. That depends on whether the claim falls under Part 5 of the Equality Act 2010, which is concerned with discrimination at work, or under Part 6, which is concerned with discrimination in education. The issue is of some general importance because it is a standard part of very many educational courses with a vocational element – most obviously those for teachers and for doctors and nurses – that students undergo training or work experience arranged by their university with another institution such as a school or hospital. It is important that it is clear against whom, and in what forum, a claim can be made if they experience discrimination in the course of that placement.
The Appellant has been represented before us by Mr Christopher Milsom, leading Ms Rachel Barrett, neither of whom appeared below. The Respondent, the Birmingham and Solihull Mental Health NHS Foundation Trust, has been represented by Mr Edward Pepperall QC, leading Mr Jonathan Meichen.
THE FACTS
Nothing turns on the details of the facts in this case, and indeed no findings of fact have been made. The facts as alleged by the Appellant can be very shortly summarised. In September 2008 she started a three-year course at Birmingham City University for a Diploma for Higher Education in mental health nursing. As part of her course she was required to undertake work placements. The course was extended because she had a baby in 2010. In March 2012 the arrangements about work placements were formalised in a written agreement between her and the University. Under the agreement the University would approach NHS bodies to identify clinical placements and the Appellant agreed to accept placements to which she was allocated. In November 2012 she was allocated a place at a unit operated by the Trust. She attended on the first day and discussed with a manager what shift pattern she would be working. She explained that she would have difficulty working nightshifts and weekends because of her childcare responsibilities. The initial indication was that this would not be a problem but within a few days she was told that the placement was being withdrawn, apparently because the Trust believed that she was not prepared to work nights and that that was incompatible with the requirements of her university course and/or of the Nursing and Midwifery Council.
THE LEGISLATION
THE EQUALITY ACT 2010
Discrimination by "employment service-providers"
The Appellant's claim is brought under section 55 of the 2010 Act, which is headed "Employment Service-Providers". Section 55 falls under Chapter 1 of Part 5 of the Act ("Employment etc"). The relevant sub-sections for our purposes are (1) and (2), which read:
"(1) A person (an 'employment service-provider') concerned with the provision of an employment service must not discriminate against a person—
(a) in the arrangements the service-provider makes for selecting persons to whom to provide, or to whom to offer to provide, the service;
(b) as to the terms on which the service-provider offers to provide the service to the person;
(c) by not offering to provide the service to the person.
(2) An employment service-provider (A) must not, in relation to the provision of an employment service, discriminate against a person (B) –
(a) as to the terms on which A provides the service to B;
(b) by not providing the service to B;
(c) by terminating the provision of the service to B;
(d) by subjecting B to any other detriment."
Sub-sections (3)-(5) go on to proscribe harassment and victimisation by employment service-providers.
Definition of "employment service-provider"
What constitutes the provision of an "employment service" is covered by section 56. Sub-section (2) reads (so far as material):
"The provision of an employment service includes –
(a) the provision of vocational training;
(b) the provision of vocational guidance;
(c) making arrangements for the provision of vocational training or vocational guidance;
(d)-(i) …".
"Vocational training" is defined in sub-section (6) as:
"(a) training for employment, or
(b) work experience (including work experience the duration of which is not agreed until after it begins)".
(I should say for completeness that none of heads (d)-(i) under section 56 (2) is concerned with vocational training: they cover other kinds of "employment services", such for example as those provided by employment agencies.)
It is common ground in this case that the Trust was an employment service-provider as regards the Appellant because on the work placement it would be providing vocational training within the meaning of section 56 (2) (a) (as glossed in section 56 (6)). It does not matter whether the arrangement in her case is best described as "training for employment" or "work experience" or both: I will simply refer to it as a work placement. It follows that, but for the provisions which I go on to describe, the Trust's alleged conduct would constitute a breach of section 55 – probably of sub-section (2) (c).
The exception for students
Sub-sections (3)-(5) of section 56 provide for three exceptions, as follows:
"(3) This section does not apply in relation to training or guidance in so far as it is training or guidance in relation to which another provision of this Part applies.
(4) This section does not apply in relation to training or guidance for pupils of a school to which section 85 applies in so far as it is training or guidance to which the responsible body of the school has power to afford access (whether as the responsible body of that school or as the responsible body of any other school at which the training or guidance is provided).
(5) This section does not apply in relation to training or guidance for students of an institution to which section 91 applies in so far as it is training or guidance to which the governing body of the institution has power to afford access."
This appeal is concerned with sub-section (5), but sub-sections (3) and (4) are relevant in as much as the three appear to form part of the same group of provisions. I set out below the terms of section 91, to which sub-section (5) refers, but for present purposes it is enough to say that it falls under Part 6 of the Act (as also does section 85, referred to in sub-section (4)) and that the institutions to which it applies are universities and other further and higher education institutions – for short I will simply say "universities". Thus its effect is that section 56 does not apply in relation to training of students of a university where the university "has power to afford access" to the training in question.
It was common ground before us that the intended consequence of disapplying section 56 is also to disapply the substantive provisions of section 55. Although the drafting is clumsy, I accept that that must be the correct reading.
The circumstances which trigger the operation of sub-sections (3)-(5) are all circumstances in which a remedy against discrimination is afforded by other provisions of the Act. In the case of sub-section (3) the only "other provisions" of Part 5 which apply to "training" (none refer to "guidance") are those proscribing discrimination by the various people or institutions who provide work, such as employers (section 39), partnerships (section 44) or persons making appointments to public offices (section 50): the proscribed acts include discrimination in the way in which access is offered to (among other things) training – see, e.g., section 39 (2) (b), which I set out at para. 12 below. In the case of sub-sections (4) and (5) the two sections to which they refer, sections 85 and 91, are likewise sections which proscribe discrimination by the institutions in question – that is, schools and universities. That being so, it seems reasonably evident that the purpose of all three sub-sections is to prevent overlap – that is, to prevent claims in relation to the same "training or guidance" being brought under more than one provision. The effect of sub-sections (4) and (5) is that any claims arising out of discrimination in relation to training and guidance to which access is afforded by schools or universities would have to be brought under a different Part of the Act, which in turn means that they would have to be brought in the County Court rather than the Employment Tribunal. However, that is not so in the case of sub-section (3), which is designed to prevent overlap with other provisions in the same Part, in respect of which the Employment Tribunal is equally the allocated forum. Accordingly it does not appear that the draftsman was concerned, or in any event concerned only, with forum allocation.
Section 91
Section 91 falls under Chapter 2 of Part 6 of the Act...
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