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Work placements

Work placements are covered by the Equality Act, either under the normal employment provisions or under the provisions which apply to education providers such as universities.

Summary

This page deals with work placements related to a university course, or a further education course. However:

Returning to work placements related to a university or FE course, both the university (or college) and the placement provider are likely to be subject to the Equality Act, so that the student has a claim if there is discrimination by either of them.

However, claims even against the placement provider will sometimes need to go to the County Court (or sheriff court in Scotland) rather than the employment tribunal. This reflects the fact that any claims against the university will normally in any event need to go to the County Court.

This means the time limit for bringing a claim may be either three months, for the employment tribunal, or six months (sometimes nine months) for the County Court. The time limit runs from the time of the discrimination - it should be borne in mind that (with one exception) internal and external complaint/appeal procedures do not extend the time limit for making a legal claim: Resolving issues at university or FE college.

As regards Equality Act duties of the univerisity or FE college, the Act includes discrimination in relation to any "benefit, facility or service" for a student. The non-exhaustive list of examples of what is covered by this, in para 10.25 of the Technical guidance, includes arranging work placements, and placement-finding services. (See on this area University and FE college - more detail>What activities are covered?)

As discussed below, technical details of the law on work placements are sometimes complicated and uncertain.

However, the key point is that universities, placement providers and indeed qualification bodies responsible for professinal exams, should be subject to the Equality Act. As normal, a student will be looking to resolve the situation without having to go to court. See Resolving issues at university or FE college.

Guidance

In 2002 the DfES published a good practice guide for further and higher education institutions: Providing Work Placements for Disabled Students (external link).

See also EHRC guidance: Work placements (link to EHRC website).

Technical uncertainty, and different tribunals

Sometimes a claim against the placement provider must go to the County Court - in the case of a placement for which the unversity has power to afford access, unless the student is an employee (below Claims against the placement provider: employment tribunal or County Court?). Here it may be unclear what technical basis there is for placement provider's liability (below Technical difficulty on liability for acts of the placement provider). However there are strong arguments, not least under EU law, that the placement provider is liable under the Equality Act. There is ongoing litigation as to the circumstances in which a claim goes to the County Court (the Blackwood case below).

Where a claim against the placement provider must go to the employment tribunal, there is the odd situation that any related claim against the university or perhaps college may have to go to a different court, the County Court.

If a professional qualification is involved, the position is further complicated in that any claim against a qualification body for a professional exam (which may also be involved in a dispute) must go to the employment tribunal. So one might have a claim against the university going to the County Court, a claim against the professional qualification body going to the employment tribunal, and a claim against the placement provider going to either one of these depending on the circumstances.

A situation which has not really been addressed by the courts or guidance is where the placement provider has to 'pass' the student to enable them to continue with the course, or where marks by the placement provider count towards a qualification. Discrimination here is likely to be covered by the Equality Act, though technical details are unclear.

Schools

This page deals with work placements in relation to universities and further education colleges. However the position is similar as regards schools.

Here too the work placement will not fall within the employment provisions (and so will not go to the employment tribunal) if the student is not an employee and the school has power to afford access to the placement.

In that case, disability discrimination claims will go not to the County Court (as with universities) but to the appropriate tribunal for schools, depending on whether it is England, Wales or Scotland: see Schools: Resolving disputes.

The rest of this page: Warning

The rest of this page is rather technical, and you may wish to ignore it. It deals mainly with which set of rules, and so which tribunal, deals with particular types of claims.

Claims against the placement provider: employment tribunal or County Court?

This is the same as asking which set of provisions apply, is it the

In brief the position seems to be that

On claims to the County Court, under the education provisions, the reasonable adjustment duty seems to be anticipatory, rather than the normal individual duty applying to employment.

In more detail:

If the student is an 'employee' (eg paid placements)

Sometimes the student on a placement is an 'employee' within the extended definition in s.83(2). In this case, it seems the normal employment provisions of the Equality Act will apply to the relationship between employer and employee, and claims will go to the employment tribunal.

'Employment' within s.83(2) EqA includes a contract of employment, a contract of apprenticeship, or a 'contract personally to do work'. Most obviously, a student is likely to be an 'employee' if he or she is paid.

A student may sometimes be an employee even if there is no payment, if there is legally a contract with the placement provider under which the student must personally do work. A contract will involve the student receiving some benefit though, since otherwise there is no 'consideration' which is required for a contract to exist. See Employees and beyond and Volunteers.

The employment provisions of the Equality Act seem to apply here because nothing excludes them. Indeed the special 'employment services' provisions discussed below are excluded by s.56(3) EqA, since the employee is covered by the normal employment provisions such as s.39. The possibility of the student being an employee was not considered in the Blackwood case below. In that case it may not have been relevant on the facts.

The requirement for claims against the placement provider go to the employment tribunal could sometimes lead to the odd situation that a related claim against the university etc may need to go to go elsewhere, to the County Court under the education provisions. However, in some cases the university may itself be liable under the employment provisions, for example as an agent of the employer, or through helping a breach of the employment provisions. Further, on the logic of the Blackwood case (below Technical difficulty on liability for acts of the placement provider), the employer may possibly also be liable under the education provisions (eg as agent of the university), so that it may be permissible to alternatively claim to the County Court against the employer, along with the university. The position is unclear!

If the student is not an employee

See previous heading as to whether student is an employee. And as to which of the next two categories applies, see below Whether the university etc has 'power to afford access'?

If the university etc does not have power to afford access to the work placement

If an education provider does not have power to afford access to the work experience, the employment provisions of the Equality Act apply to the work experience. Claims against the placement provider therefore go to the employment tribunal (as if the student were an employee).

Even though the student is not an employee, the work experence should fall within the employment provisions of the Equality Act on the basis that it is an 'employment service' within s.55 EqA. The definition of employment service in EqA s.56 includes: "work experience (including work experience the duration of which is not agreed until after it begins)", and also "making arrangements for the provision of" work experience. See too the Employment Code para 11.59.

The normal prohibitions on discrimination will apply.

Even where the work experience is an 'employment service', the reasonable adjustment duty on organisations providing work experience is similar to the duty for employment generally. In other words it is an individual duty, to make adjustments where the particular individual is put at a disadvantage rather than having a group aspect (contrast the next heading). This is because under Sch 8 para 2 the duty is owed to an 'interested disabled person', which for an employment service consisting of work experience is defined in EqA Sch 8 para 16.

If the university etc has power to afford access: education provisions apply

If the university or further education college etc has "power to afford access" to the work experience, discrimination should still be covered by the Equality Act (despite Technical difficulty on liability for acts of the placement provider below). However, on current case law it will fall within the Part 6 education provisions (see provisions relating to universities) rather than the employment provisions.

Therefore any claims will go to the County Court, or sheriff court in Scotland.

It seems that the anticipatory reasonable adjustment duty applies, based on group disadvantage. This contrasts with the normal type of reasonable adjustment duty applying to employment, which is based on disadvantage to the individual claimant.

The technical reason for the education provisions applying here, rather than those on work experience, is that by reason of s.56(5) EqA the 'employment service' provisions of s.55 do not apply in relation to training or guidance (including work experience) for students of an institution to which s.91 EqA (universities and further education colleges) applies in so far as it is training or guidance to which the governing body of the institution has power to afford access. The Blackwood case below said (more or less) that the education provisions should apply to the education provider instead.

Whether the university etc has 'power to afford access'?

The Employment Appeal Tribunal (EAT) in Blackwood below has held the university's power to afford access to the work placement need not be unconstrained. It might be subject to someone else's consent. Power means the ability to do something, here to put its students into placements it has organised. However, the case is under appeal to the Court of Appeal:

Blackwood v Birmingham and Solihull Mental Health NHS Foundation Trust (link to bailii.org), EAT, 2014
The claimant was undertaking a Diploma of Higher Education in Mental Health Nursing. Her university arranged a vocational placement with the Trust. However, the Trust withdrew the placement. This was because owing to childcare responsibilities the claimant was unable to comply with shift patterns requiring her to work late or night shifts. She made a claim for indirect sex discrimination to the employment tribunal, against both the university and the Trust. She withdrew the claim against the university when it argued that any claim against it should go the County Court (on the basis the claim fell within Part 6 EqA on education rather than Part 5 on employment). The EAT therefore only had to consider the claim against the Trust.

The EAT held that any claim against the Trust must be made to the County Court under Part 6. The employment tribunal had no jurisdiction. S.56(5) excluded the 'employment service' provisions because the university had power to afford access. The power did not have to be an unconstrained, it might be subject to someone else's consent. Power meant the ability to do something, here to put its students into placements it had organised.

The EAT accepted that the Equality Act should be construed, so far as it is permissible, so as not to permit gaps in the relevant protections. The claimant should not fall between protections. If the university has the power to afford access and the organisation actually providing the work experience commits an act which would otherwise constitute an act of discrimination, the university can be liable under s.91 EqA and the liability of the provider arises indirectly, for example as an agent of the university for the purposes of s.110 EqA. This was compatible with EU law - the claimant was not deprived of protection but simply fell within a different regime, the education rules rather than the employment rules.

This case is being appealed to the Court of Appeal, so the above decision is not final: http://casetracker.justice.gov.uk/listing_calendar/getDetail.do?case_id=20143461

Technical difficulty on liability for acts of the placement provider

The Blackwood case could give rise to difficulties as regards discrimination by the company or other organisation providing the work placement (here the Trust). S.91, the relevant provision in EqA Part 6 on education, covers discrimination by universities. In the Blackwood case, the university had argued that the Trust which provided the placement was not its agent under ss.109-110 EqA, so there was no discrimination by the university when the Trust terminated that placement. If this argument succeded, it could mean that neither the university nor the Trust is liable under s.91 as regards acts of the Trust. See paragraphs 32, 52 and 59 of the EAT decision (which also consider s.112) and, generally on these provisions, my page Who is liable.

The last sentence of para 52 In the EAT's decision indicates that the university can be liable under s.91 for acts of the work placement provider (and the provider might be liable as an agent for example). However in Ministry of Defence v Kemeh (not considered in Blackwood) the Court of Appeal gave a limited interpretation to who is an 'agent'. The consequence in the Kemeh case was that the employer was not liable under the EqA for acts of its subcontractor since the subcontractor was not its 'agent'. On the wording of the EqA, it is difficult to see how the university in a case such as Blackwood is liable under s.91 for acts of the placement provider unless the latter is the university's agent.

It is important that EU law does require that claimants here be protected - and it may be that in the light of Blackwood tribunals must interpret provisions such as ss.109-110 or s.112 so as to give protection. However, the position is unclear and is likely to be the subject of further case law. Indeed the Blackwood case is itself going to the Court of Appeal.

Garrard case

It is useful to contrast the Garrard case where the claimant was not a student of the university, and the employment provisions were held to apply:

Garrard v Governing Body of the University of London, County Court [2013] EqLR 746
The case concerned an alleged failure to make reasonable adjustments in relation to a postgraduate training programme for doctors. Successful applicants were employed by the NHS Trust where the training took place. The London Deanery administered interviews, and was argued to be part of the University of London. The County Court held it had no jurisdiction to hear a complaint against the University of London under Part 6 Equality Act (education). The programme was vocational training within Part 5 Equality Act. S.56(5) did not exclude that because those on the course were not 'students' of University of London, and anyway the London Deanery's role was so circumscribed that it did not have power to afford access to the training.

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Last updated 17th August, 2015