Blackwood v Birmingham & Solihull Mental Health NHS Foundation Trust

Factual and Procedural Background

The Appellant, a student undertaking a mental health nursing course at The University, was required to complete work placements as part of her studies. In November 2012, she was allocated a placement at a unit operated by Company A. After discussing shift patterns and expressing difficulty with night and weekend shifts due to childcare responsibilities, the placement was withdrawn by Company A, purportedly because the Appellant was unwilling to comply with the course or regulatory requirements regarding shift work.

The Appellant brought a claim alleging sex discrimination against Company A under the Equality Act 2010 in the Employment Tribunal. The key procedural issue was whether the Employment Tribunal had jurisdiction to hear the claim or whether the claim should have been brought in the County Court, depending on whether the claim fell under Part 5 (discrimination at work) or Part 6 (discrimination in education) of the Equality Act 2010.

The Employment Tribunal dismissed the claim for lack of jurisdiction, a decision upheld by the Employment Appeal Tribunal. The Appellant appealed to the Court of Appeal.

Legal Issues Presented

1. Whether section 55 of the Equality Act 2010, concerning discrimination by employment service-providers, applied to the Appellant's claim against Company A in respect of the work placement.
2. Whether section 56(5) of the Equality Act 2010 disapplied section 55 in cases where a university has the power to afford access to training or guidance, thereby excluding claims against work placement providers from the Employment Tribunal's jurisdiction.
3. Whether the Appellant had an effective remedy against discrimination by the work placement provider under the Act, considering the allocation of claims between the Employment Tribunal and the County Court.
4. The correct interpretation of "power to afford access" in section 56(5) and its implications for forum allocation and substantive protection.
5. The scope and application of indirect liability provisions (sections 109-112) in the context of work placements arranged by universities.

Arguments of the Parties

Appellant's Arguments

• Section 56(5) should not be interpreted to exclude the Appellant's claim against the work placement provider under section 55, as this would leave students without effective protection against discrimination by providers.
• The relationship between universities and work placement providers is generally not one of principal and agent; therefore, indirect liability provisions do not ensure a remedy against providers.
• The legislative history and predecessor legislation provided protection against discrimination by providers, and Parliament did not intend to reduce protection under the 2010 Act.
• The UK would be in breach of EU Directives if students on work placements lacked protection against discrimination by providers.
• Section 56(5) could be construed purposively or under the Marleasing principle to avoid a lacuna in protection, preserving claims against providers in the Employment Tribunal.

Respondent's Arguments

• Section 56(5) reflects a logical demarcation between Parts 5 and 6 of the Equality Act, allocating claims about discrimination in education (including work placements arranged by universities) to the County Court under Part 6.
• Students have a remedy against their university under section 91 for discrimination in access to placements, but not against the provider, similar to employees' claims against employers but not training providers.
• Indirect liability provisions may be limited but are consistent with other protected persons under the Act.
• The relationship between universities and placement providers can be treated as principal and agent in every case, making the university liable for providers' acts under sections 109 and 110, thus maintaining the forum allocation.
• The allocation of forum and liability reflects a deliberate legislative choice to avoid fragmented claims across different forums.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Fletcher v Blackpool Fylde & Wyre Hospitals NHS Trust [2005] IRLR 689	Protection of vocational trainees against discrimination during placements under EU Equal Treatment Directive.	The Court found the reasoning persuasive that vocational trainees should be protected in working conditions during placements, supporting the need for protection under the Equality Act.
Pickstone v Freemans plc [1989] AC 66	Principles governing interpretation of domestic legislation in conformity with EU law (Marleasing principle).	The Court referenced this case to support a broad and purposive interpretation of the Equality Act consistent with EU obligations.
Litster v Forth Dry Dock and Engineering Co Ltd [1990] 1 AC 2	Same as above; interpretation of legislation to comply with EU law.	Reinforced the obligation to interpret domestic law in conformity with EU directives.
Ghaidan v Godin-Mendoza [2004] UKHL 30	Interpretation of domestic statutes to be consistent with human rights and EU law.	Supported the approach to read legislation in a way that gives effect to EU obligations even if that requires departing from literal meaning.
Kemeh v Ministry of Defence [2014] EWCA Civ 91	Application of ordinary common law agency principles in Equality Act context.	The Court held that agency concepts in the Act must be applied according to their ordinary legal meaning, limiting artificial extensions of liability.
Lana v Positive Action Training in Housing (London) Ltd [2001] UKEAT 245/00/1503	Recognition of principal-agent relationship for liability under discrimination legislation.	The case showed that agency relationships can exist but are fact-specific; not every work placement arrangement forms such a relationship.
Moyhing v Homerton University Hospitals NHS Trust UKEAT/0851/04	Consideration of agency versus arm’s length relationship in work placement discrimination claims.	The Employment Appeal Tribunal considered that typical university-work placement provider relationships are arm’s length, not agency.

Court's Reasoning and Analysis

The Court began by examining whether section 56(5) disapplied section 55 in a way that deprived students of protection against discrimination by work placement providers. It accepted that the university has the "power to afford access" to training, so section 56(5) excludes claims against providers from section 55, pushing claims into Part 6 and the County Court.

However, the Court acknowledged that this creates a lacuna: students have no direct remedy against providers under Part 6, and indirect liability provisions (sections 109-112) do not reliably fill this gap because the typical university-provider relationship is arm’s length, not agency, and providers’ acts are not generally authorized by the university.

The Court rejected the Respondent’s submission that all provider acts could be treated as authorized agency acts, as this would be artificial and inconsistent with established legal principles of agency.

The Court considered whether the language of section 56(5) could be construed restrictively or under the Marleasing principle to avoid this gap. It found that ordinary domestic construction could not achieve this without rendering the provision meaningless. However, applying the Marleasing principle, the Court held it was legitimate to depart from the literal wording to avoid denying substantive protection against discrimination, even if that meant claims might be brought in a different forum than Parliament originally intended.

Ultimately, the Court concluded that claims of discrimination by work placement providers should fall under Part 5 of the Act and be heard in the Employment Tribunal, preserving the protection envisaged by EU directives and predecessor legislation, despite the literal wording of section 56(5).

The Court acknowledged the inconvenience of claims being brought in different forums when involving both universities and providers but held that this was preferable to denying students any remedy.

Holding and Implications

The Court ALLOWED THE APPEAL against the Employment Appeal Tribunal's decision and REMITTED the case to the Employment Tribunal for determination of the merits.

The holding clarifies that section 56(5) of the Equality Act 2010 does not exclude claims against work placement providers under section 55, thereby preserving students’ substantive protection against discrimination by such providers and confirming the Employment Tribunal as the appropriate forum for such claims.

No new precedent altering the statutory framework was created; rather, the Court applied established principles of statutory interpretation to ensure compliance with EU law and to avoid leaving students without effective remedies. The decision underscores the limits of agency concepts in extending liability and highlights the potential inconvenience of forum allocation but prioritizes substantive protection over procedural convenience.