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Work experience

Work experience is covered by the Equality Act, either under the normal employment provisions or under the provisions which apply to education providers such as universities. Where the education provisions apply, claims normally go to the County Court (sheriff court in Scotland) rather than the employment tribunal but there are uncertainties about coverage of acts by the company providing the work experience.

Summary

The Equality Act applies to work experience. The employment provisions of the Act apply in the normal way unless an education institution such as a university has power to afford access to the work experience. 

If an education institution does have power to afford access, then in some cases (where the student is not an 'employee') claims must go to the County Court rather than the employment tribunal. (It is a different court in Scotland, or in the case of schools). The student should (not least under EU law) still be protected by the Equality Act in respect of discrimination, whether it is by the university or the third party providing the work experience. However, at present there is uncertainty as to how the Equality Act applies technically in respect of actions of the third party.

Which provisions apply to the work experience?

In deciding the treatment of work experience, the first question is whether a school, university, or further education college etc has "power to afford access" to it.

If the answer to that is yes and (it seems) the student is not an 'employee' as defined in the Equality Act, then the work experience falls within the education provisions in Part 6 of the Act. On this, see below Work experience arranged by an education institution. In summary:

If an educational institution does not have power to afford access or (it seems), even though it does that power, the student is an 'employee', 'the individual is covered under the employment provisions (Part 5) of the Equality Act. Claims against the employer (and perhaps, in some cases, against the educational institution) can go to the employment tribunal. See below Work experience not arranged by an education institution

Whether an 'employee'

In deciding whether the student is an 'employee', the wide definition in s.83(2) Equality Act applies. This definition includes a contract of employment, a contract of apprenticeship, or a 'contract personally to do work'. So the student may well be an 'employee' if he or she is paid, or if he or she otherwise has a contract with the company providing the placement. See Employees and beyond and Volunteers.

Work experience not arranged by an education institution

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, so that any claims go the employment tribunal.

Firstly, the student may be an 'employee' within s.83(2) (see above Whether an employee). In this case it seems the normal employment provisions apply to the relationship between employer and employee. The special 'employment services' provisions are not needed, and are excluded by s.56(3) EqA.

Even if the student is not an 'employee', the work experence should still 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. Claims go to the employment tribunal. 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. 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.

Work experience arranged by an education institution

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

If the student is an 'employee'

Sometimes the student will be an 'employee' within the extended definition in s.83(2) (see above Whether an employee). In this case, probably the normal employment provisions will apply to the relationship between employer and employee, as discussed above under Work experience which is not arranged by an education provider. Any claims could therefore go to the employment tribunal. The special 'employment services' provisions are excluded by s.56(3) EqA.

This seems to be the legal position under s.56(3), despite the Blackwood case below where the possibility was not considered. In that case it may not have been relevant on the facts. This could sometimes lead to the odd situation that even though a claim against the employer (placement provider) goes to the employment tribunal under Part 5, a related claim against the university etc may need to go to the County Court under the Part 6 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, the employer may possibly also be liable under the Part 6 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'

If a school, university, further education college etc has "power to afford access" to the work experience, discrimination should still be covered by the Equality Act (though see below on acts of the placement provider). However, on current case law it will fall within the Part 6 education provisions (for example the provisions relating to universities) rather than the employment provisions, even as regards acts of the placement provider. Therefore any claims will go to the County Court (sheriff court in Scotland). If the education provider is a school, there are different tribunals depending on whether it is England, Wales or Scotland.

This is because under s.56(4)(5) EqA the 'employment service' provisions of s.55 do not apply -

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 protection against acts of the company or other organisation providing the work placement (here the Trust). Section 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 in relation to the placement. 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 in the Blackwood case the EAT gave permission to appeal to the Court of Appeal.

Reasonable adjustment duty is anticipatory

Another consequence of the education provisions applying seems to be 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.

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 9th November, 2014