The Court of Appeal's ruling in the case of Blackwood v Birmingham & Solihull Mental Health NHS Foundation Trust has resolved a potentially significant issue for the relationship between universities and colleges and work placement providers, namely who should the student sue if s/he claims to experience discrimination while on the work placement.
In November 2012, Miss Blackwood undertook a work placement at the NHS Trust as part of her nursing studies at Birmingham City University. After a few days the Trust withdrew the placement apparently because Miss Blackwood was not prepared to work nights due to child care responsibilities. Miss Blackwood claims that the Trust had discriminated against her.
Both the Employment Tribunal and the Employment Appeal Tribunal dismissed Miss Blackwood's claim on a technicality about jurisdiction. They held that since the training was an essential part of the nursing course at the University, the University had "power to afford access" to the training. As a result of the wording of s.56(5) of the Equality Act, Miss Blackwood should have issued her claim the County Court - either against the University on the basis that the Trust had been acting as its agent, or against the Trust on the basis that it had induced the University to discriminate. Both of those are secondary claims.
This would mean that universities and colleges would need to work detailed indemnities into their agreements with work placement providers in order to ensure that if the provider did discriminate against the student, the damages and the cost of dealing with a claim could be recovered.
The Court of Appeal has reversed the position. It has held that it cannot have been Parliament's intention to leave students on work placements without a primary claim for discrimination. The court has effectively re-drafted section 56(5) of the Equality Act so that:
- if the student's claim is about how the university has given him/her access to a work placement, it should be brought against the university in the county court; and
- if the student's claim is about how s/he has been treated by the placement provider while on placement, it should be brought against the placement provider in the Employment Tribunal.
While that may seem common-sensical and obvious, it is not what the literal words of the Equality Act provide for. It is interesting to note that the Court was only able to reach this decision because of "...the obligation on the English courts to construe domestic legislation consistently with Community law obligations...". Further comment on that is not for this blog.
The good news for universities and colleges is that the decision removes the pressing need to work indemnities into work placement agreements. The good news for Miss Blackwood is that her claim against the Trust may continue in the Employment Tribunal.