Ian Nwabueze v University of Law Ltd and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Bean,Lady Justice Asplin,Lord Justice Lewis |
| Judgment Date | 13 November 2020 |
| Neutral Citation | [2020] EWCA Civ 1526 |
| Docket Number | Case No: A2/2019/1838 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 November 2020 |
[2020] EWCA Civ 1526
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HER HONOUR JUDGE EADY QC
UKEATPA/0734/18/JOJ
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Bean
Lady Justice Asplin
and
Lord Justice Lewis
Case No: A2/2019/1838
The Appellant appeared in person
Charlotte Davies (instructed by DLA Piper UK) for the Respondent
Hearing date: 10 November 2020
Approved Judgment
The Appellant alleges that the University of Law Ltd and six members of its staff discriminated against him when he was studying for the degree of Master of Laws in Professional Legal Practice in 2017. He issued a claim in the employment tribunal. The Respondent applied to strike out the claim on the grounds that it was a university and that accordingly only the county court had jurisdiction. By a decision of 13 July 2018 Employment Judge Davidson granted the application and struck out the claim. On appeal to the Employment Appeal Tribunal Her Honour Judge Eady QC (as she then was) held that there was no reasonably arguable question of law raised by the appeal and accordingly dismissed it under rule 3(10) of the Employment Appeal Tribunal Rules 1993. With the permission of Arnold LJ the Appellant now appeals to this court.
Anonymity
The Appellant was granted anonymity in the ET and on appeal to the EAT, where he was described by the initials EV, and told us that he has likewise been granted anonymity in other claims brought in the county court and ET. He sought to maintain that anonymity in this court. As this court decided in Curless v Shell International Ltd [2020] ICR 431; [2019] EWCA Civ 1710, the grant of anonymity in a lower court is not binding on this court and application must be made for a further order. Curless was decided after the two judgments below in the present case.
The basis of the application is that the Appellant alleges that he has been the victim of discrimination amounting to persecution. He also told us that threats have been made against his life, though I did not understand this to have been by the present Respondents. We are of course in no position to decide on the merits of these allegations. But Curless, and the many appellate authorities cited in it, make it clear that “due to the importance of the principle of open justice, it will usually only be in an exceptional case, established on clear and cogent grounds, that derogation from the principle of open justice (including the freedom to publish court proceedings) will be justified”. I do not consider that there are any clear or cogent grounds for granting anonymity in this appeal.
It is a feature of the Equality Act 2010 that (with the exception of equal pay) it tends to separate jurisdiction into watertight compartments. Allegations of discrimination in employment covered by Part 5 of the Act are within the exclusive jurisdiction of the ET by virtue of s 120. Allegations of discrimination in contravention of Part 6 of the Act dealing with education are among those within the exclusive jurisdiction of the County Court by virtue of s 114(1). An employment tribunal cannot hear a claim which is not within its jurisdiction, however convenient it might be to do so. Jurisdiction cannot even be conferred by consent.
Sections 53 and 54 of the 2010 Act, which fall within Part 5, introduce the concept of a qualifications body. Section 53 states that a qualifications body must not discriminate against a person in varying respects, for example as to the terms on which it is prepared to confer a relevant qualification on him. We are not concerned on this appeal with the details of s 53. Section 54 is the interpretation section for the purposes of s 53. It provides, so far as relevant:-
(2) A qualifications body is an authority or body which can confer a relevant qualification.
(3) A relevant qualification is an authorisation, qualification, recognition, registration, enrolment, approval or certification which is needed for, or facilitates engagement in, a particular trade or profession.
(4) An authority or body is not a qualifications body in so far as—……
(c) it is the governing body of an institution to which section 91 applies….
Section 91, to which s 54(4)(c) refers, provides that the responsible body of an institution to which the section applies must not discriminate against a person in various ways, and in particular (s 91(2)) must not discriminate against a student. Section 91(10) provides that:-
“In relation to England and Wales, this section applies to—
(a) a university;
(b) any other institution within the higher education sector;
(c) an institution within the further education sector.”
Section 91(12) provides that in the case of an institution within Section 91(10) (a), (b) or (c) the governing body is the responsible body referred to.
The grounds of appeal
The grounds of appeal argue as follows:-
“1. The definition of institution within the act is required to be a University receiving HEFCE funds at the material time relevant to the issues at hand.
2. The University of Law is not defined legally as a University as they were not granted Degree awarding powers they are holding the same DAP as the former College of Law.
3. The self critical cohesive academic community was granted DAP's in 2006, and at the time held within the legal entity of the College of Law which continues now within the University of Law limited.
a. The University of Law Limited was not granted new DAP awarding powers in 2012
b. The definition of University in section 94 of the 2010 Act includes college.
c. The Court of Appeal heard a case ( Burke v College of Law) from a body that held the same exact DAP that the first Respondent held.
4. Section 91 applies only to institutions as defined by section 94 (5) of the 2010 Act.
5. President of the Employment Appeal Court Justice Choudhury gave the Appellant permission that he could rely on the Burke v College of Law case.
6. The first Respondent pleaded to the ET that they were granted University status by Royal Charter creating confusion and subsequently the ET and EAT are now stating that the University of Law Limited were granted DAP in 2012 despite the DAP was only granted to the self critical cohesive academic community in 2006 and held with the College of Law which continues completely intact whilst being held with the University of Law.
7. The First Respondent keeps changing their status pleadings and material matters whenever I prove their facts provided to the courts are incorrect in which creates unfair confusion for all parties including the Courts.”
Is the Respondent a university?
The evidence put forward by the Respondent includes the following. The College of Law was incorporated by Royal Charter in 1975. It was not at that stage a university and could not award degrees. It was originally granted the power to award degrees by an order of Her Majesty in Council dated 19 July 2006. It appears that a company was incorporated on 2 February 2012 and its name was changed to The College of Law Limited on 25 July 2012. Although there is no direct evidence of this, the implication is that it acquired the business of the chartered College of Law. The company changed its name to the University of Law Ltd pursuant to permission granted by the Department...
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Ms A Claxton-Mayer v Gateshead Council (The LA) and others: 2501791/2020
...The decision to fail her was taken in February 2019 by Ms Archibald. 14. The University’s response cites Nwabueze-v-University of Law 2020 EWCA Civ 1526. On 7 January I thought the claimant was probably claiming against the university as a “qualifications body” under s 53 and 54 but it may ......