Court of Appeal decide case of Talia Blackwood v Birmingham & Solihull Mental Health NHS Foundation Trust on 23rd June 2016 which could have been decided differently after Brexit!
The Appellant brought a claim for sex discrimination in connection with a work placement as part of her studies to become a nurse but which was withdrawn when she indicated that she would have difficulty working nightshifts and weekends due to childcare responsibilities. The basis of the claim being that it was indirectly discriminatory to apply such a requirement as it adversely effected significantly more women than men. She brought proceedings in the Employment Tribunal which were dismissed by the Tribunal on the basis that the ET had no jurisdiction to entertain her claim.
The Court of Appeal held that by applying ordinary principles of construction of section 56 (5) Equality Act it did create a lacuna in protection leaving students on such placements without a remedy against the placement provider in most cases.
However, on the Marleasing principle, the obligation on the English courts to construe domestic legislation consistently with Community law obligations, the court construed the effect of sections 55 and 56, so as to give effect to the relevant Directives. The Court of Appeal decided that if the claim is about discrimination by the provider in the course of the work placement, the provider will be primarily liable for that discrimination under section 55, with the forum for any proceedings being the Employment Tribunal. The matter was therefore remitted back to the Employment Tribunal for hearing and lacuna in the Equality Act was filled.
However, if there had been no obligation on the English courts to give effect to the European Directive then arguably the case would have been decided differently and the lacuna in the Equality Act left for parliament to address and the Appellant left with no remedy.
Phil Storey
Bailey Wright & Co
