By Chris Milsom
In Blackwood v Birmingham and Solihull Mental Health NHS Foundation Trust UKEAT/0130/14 the EAT was faced with a jurisdictional issue which is of practical importance but is somewhat bereft of appellate guidance. Since the CA is due to hear an appeal in July 2015, the decision is still in a state of flux.
B was a single mother and university student with Birmingham City University (BCU) studying for a diploma in mental health nursing. Part of her course was a vocational placement with the Respondent Trust. The shift patterns to which her placement was subject created childcare difficulties and ultimately the Trust withdrew the placement. B pursued an indirect sex discrimination complaint against both the Trust as provider of the NHS training and the BCU as its agent. On considering BCU’s response to the claim B withdrew her complaint against it and continued against the Trust only. This made its way to a hearing before the Birmingham ET on 21 October 2013.
At the outset of that hearing, the Trust raised an issue of jurisdiction which it had not advanced previously, namely that ss55-56 EqA precluded a claim from being entertained by the ET. Section 55 provides as follows:-
(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.”
Section 56 acts as the interpretation provision to the previous section and provides as follows:-
“(1) This section applies for the purposes of section 55.
(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.
(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.
(6) ‘Vocational training’ means—
(a) training for employment, or
(b) work experience (including work experience the duration of which is not agreed until after it begins).”
had cause consider the effects of s56(5) EqA 2010
Sections 55-56 fall under Chapter 1 of Part V (Employment/Work) subject to the ET jurisdiction. Section 91 falls under Chapter 2 – Further and Higher Education – of part 6; “Education” and as such pursuant to s114 any claims arising from s91 must be pursued in the county court. It provides as follows:-
Section 91 Students: admission and training
(1) The responsible body of an institution to which this section applies must not discriminate against a person:
(a) in the arrangements it makes for deciding who is offered admission as a student;
(b) as to the terms on which it offers to admit the person as a student;
(c) by not admitting the person as a student.
(2) The responsible body of such an institution must not discriminate against a student:
(a) in the way it provides education to the student;
(b) in the way it affords the student access to a benefit, facility or service;
(c) by not providing education for the student;
(d) by not affording the student access to a benefit, facility or service;
(e) by excluding the student;
(f) by subjecting the student to any other detriment.
(10) 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;
(d) a 16 to 19 Academy.
At first instance the ET concluded that by reason of s56(5) EqA 2010 it had no jurisdiction to consider B’s complaint. Her placement was arranged by BCU who were, in the ET’s eyes, the “governing body of the institution (with) power to afford access.” “Power” was interpreted as “the ability to do something:” the “something” in play was the ability to arrange the placement.
On appeal before the EAT B contended that the placement required BCU to arrange it and the Trust to accept her. Neither party had overall “power to afford access.” Moreover, only the Trust had the ability to terminate the access and – relevantly for the purposes of the claim – set shift patterns. A purposive interpretation was required so as to give effect to the Equal Treatment Directive under which vocational training and employment were in parity (see Fletcher and ors v Blackpool Fylde and Wyre Hospitals NHS Trust  IRLR 689). Further, the ET’s approach risked the creation of a lacuna since it was not clear how BCU would be liable for the act of which B complained Finally, B challenged the ET’s finding of fact process given that it had failed to hear any evidence.
The EAT, however, rejected this approach. S56(5) was precise and “Parliament’s intention is plain: if a university has power in respect of vocational training and guidance undertaken by its students, then that training and guidance should be seen as part of that higher education and complaints of discrimination should be pursued under the education provisions” ( Reasons). If the provider of that training commits a discriminatory act, “the university can be liable under section 91 and the liability of the provider would arise indirectly, for example as an agent of the university for the purposes of section 110 of the Act:”  Reasons. The EAT saw no reason to adopt a narrow interpretation of the exemption to the ET jurisdiction provided by s56(5) since it “does not exclude liability; it simply places it under a different part of the Act, a separate form of protection:” .
The EAT endorsed the ET’s interpretation of “power:” the mere fact that this power required some form of consent from the provider of the placement did not preclude this natural reading. It did not accept that the need to pursue claims in the county court amounted to lesser protection; nor did it accept that the difficulties which might arise in terms of the liability of agents of the university were any more onerous than might be found in the employment field. On this reading of “power,” given that the BCU had indeed been able to place B with the Trust at the outset, no further facts needed to be heard. In short, the appeal was dismissed. Nonetheless, given the dearth of authority on point and the room for debate as to the meaning of “power” in s56(5) EqA 2010, the EAT granted permission to appeal.
On B’s case the education provisions add an unnecessary layer of complexity which could and should be lifted. Moreover, the treatment of BCU as principal and the Trust as agent failed to reflect the reality of the situation or the level of culpability between the parties. Establishing that the Trust was BCU’s agent is by no means a foregone conclusion: see Kemeh v MoD  IRLR 277 (CA) and Moyhing v Homerton University and St Barts NHS Trust UKEAT/851/04. The forthcoming appeal represents a welcome opportunity for the CA to assess how the jigsaw pieces fit together.