Blackwood v Birmingham and Solihull Mental Health NHS Foundation Trust: CA 23 Jun 2016

The Appellant claimed to have suffered indirect sex discrimination in connection with a work placement which she was offered as part of her studies to become a nurse, and she 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 .
Held: The employment tribunal did have jurisdiction.
Underhill LJ said: ‘I summarise what I believe to be the effect of sections 55 and 56, construed so as to give effect to the relevant Directives. The starting-point in any case is to identify the nature of the student’s complaint – that is, whether it is about discriminatory access to a work placement or about discrimination occurring during the placement.
(1) If the claim is about access – either that the university has failed to provide a placement at all or that it has done so in a discriminatory way – it can only be brought under section 91, and thus in the County Court. The primary claim will inevitably be against the university, because it is the university that has the responsibility for the provision of access, and it is hard therefore to see any role for sections 109 and 110; but if the provider has induced or aided that contravention it will be secondarily liable under section 111 or 112 and the student can proceed against it (in the County Court) as well as, or instead of, the university.
(2) If the claim is about discrimination by the provider in the course of the work placement, the provider will typically have done the act complained of as a principal and will thus be primarily liable for that discrimination under section 55, with the forum for any proceedings being the Employment Tribunal. There may be untypical cases where the act was done by the provider as the agent of the university. In those cases both the university and the provider will be liable, by virtue of sections 109 (2) and 110 (1) respectively, but the liability will still arise under section 55, so that the ET will still be the correct forum whether the claimant chooses to proceed against only one of them or against both. The university may of course also in a particular case be liable, depending on the facts, under sections 111 or 112 as having induced or assisted the discrimination. Any such claim will, again, have to be brought in the ET: see sections 114 (1) (e) and 120 (1) (b).

Patten, Lewison, Underhill LJJ
[2016] EWCA Civ 607, [2016] IRLR 878, [2016] WLR(D) 336, [2016] ICR 903
Bailii, WLRD
England and Wales
Appeal fromBlackwood v Birmingham and Solihull Mental Health NHS Foundation Trust EAT 22-Sep-2014
EAT Sex Discrimination: Indirect – Discrimination by other bodies
Indirect Sex Discrimination – Employment service-providers (section 55 Equality Act 2010) – Students: admission and treatment etc (section . .

Cited by:
CitedNwabueze v University of Law Ltd and Others CA 13-Nov-2020
No ET Jurisdiction for Non-employment claim
The claimant appealed against rejection of her claim for discrimination which she had brought in the Employment Tribunal rather than the County Court.
Held: The appeal failed: ‘if a body is a governing body of a university this displaces its . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination, Education

Updated: 01 November 2021; Ref: scu.565952