A student nurse has been granted permission to appeal against the decision of the Employment Appeal Tribunal made on 22nd September 2014. The Employment Appeal Tribunal dismissed the student nurse’s appeal from the decision of the Employment Tribunal of 21st October 2013, which had dismissed her claim, without hearing evidence, on the basis it had no jurisdiction to hear it.
The key issue is whether complaints of discrimination by university students against the providers of training placements can only be brought in the County Court and not the Employment Tribunal. The effect of the EAT’s decision is to exclude the tribunal’s jurisdiction.
“The key section [i.e. s.55 EA and so Tribunal jurisdiction] does not apply in relation to training or guidance for students of an institution to which s.91 applies [e.g. a university] in so far as it is training or guidance to which the governing body of the institution has power to afford access.”
The Tribunal and EAT interpreted the phrase ‘has power to afford access’ as ‘able to afford access’ and decided that the University was clearly able to provide students with placements in hospital trusts. The Tribunal considered that putting the question the other way, the University was not powerless to find placements for its students and therefore had “power to afford access” to such placements.
The effect of that decision is therefore that s.56(5) EA bites in every case where a university is able to arrange vocational training with a third party, and the Tribunal’s jurisdiction is excluded. A claimant then has to pursue remedies in the County Court, but critically has no ‘direct’ claim against the allegedly discriminatory provider, only as an alleged ‘agent’ to the university under s.109/110 EA or ‘knowing helper’ to an act of discrimination by the university under s.112 EA. The result is that there are additional hurdles in claiming against a provider, and if those hurdles are not crossed, then the claimant will not be able to pursue a remedy even if they have been the victim of discrimination.
The Employment Appeal Tribunal has given permission to appeal to the Court of Appeal on the basis that s.56(5) Equality Act could be open to a narrower interpretation than the Tribunal and EAT gave it, the inter-relationship between the employment and educational parts of the Equality Act 2010 (‘EA’) is of wider importance and that there is an absence of appellate authority on these issues. The Employment Appeal Tribunal recognised that there is an important point of principle affecting many thousands of university students on work placements.
An appeal is to be lodged with the Court of Appeal on the basis that the decision of the Employment Appeal Tribunal (and Employment Tribunal) are wrong because:-
- a) Their interpretation of s.56(5) EA was incorrect in domestic law
- b) Their interpretation of s.56(5) EA was inconsistent with EU Law;
- c) The EAT and ET were wrong to find it was unnecessary to hear evidence in order to decide whether s.56(5) EA applied.
The outcome of the case will need to be carefully considered by placement providers, universities and students. It is hoped that the court of appeal will give guidance in this area.
Bailey Wright & Co