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A university student was not prevented by the Equality Act 2010 s.56(5) from bringing a claim under s.55 against the provider of vocational training arranged by the university in respect of alleged discrimination by the provider.
The appellant (B) appealed against a decision ( I.C.R. 308) that an employment tribunal had no jurisdiction to hear her claim for sex discrimination against the respondent NHS trust.
B was a university student undertaking a diploma in mental health nursing. The university arranged a vocational placement with the trust. She was unable to work night shifts for childcare reasons, and the trust withdrew her placement. B brought a claim against the trust under the Equality Act 2010 s.55, complaining that the withdrawal constituted indirect sex discrimination on the part of the trust, which was an employment service provider. She also alleged that the university had aided the trust or that the trust had acted as its agent, but she later withdrew her claim against the university. The employment tribunal held that its jurisdiction was excluded by s.56(5), on the basis that s.56(5) disapplied s.55 in relation to the training of university students where the university had “power to afford access” to the training. The Employment Appeal Tribunal upheld that decision, holding that any claim should have been brought in the county court.
HELD: The EAT’s construction of s.56(5) left a lacuna in protection. Students had a remedy against their university if it discriminated against them by not affording them access to work placements, but the concept of “affording access” was concerned only with what the university did in enabling the student to enjoy the benefit in question. In the instant context, that was making and maintaining the arrangements under which the student received vocational training from the third party. The phrase did not in its natural meaning extend to responsibility for acts done by the work placement provider in the course of the placement. There was no basis on which the provider’s acts could be covered by the university’s liability under s.91. The relevant provision was plainly that which proscribed discrimination by providers, namely s.55, but if s.56(5) had the meaning found by the EAT, a student had no remedy under s.55 (see paras 42-43 of judgment).
The problem could not be rectified by applying ordinary principles of construction. However, it was possible to adopt an alternative construction by applying the Marleasing principle to give effect to the underlying Directive 2006/54. The necessary effect could be achieved by adopting the following wording for s.56(5): “This section does not apply to discrimination in relation to training or guidance for students of an institution to which section 91 applies to the extent that the student is entitled under that section to make a claim as regards that discrimination.” The scope of s.56(5) would be reduced as compared with its natural meaning. On the natural meaning, claims for discrimination were capable of being brought against a university by reference to either s.56 or s.91. The proposed construction of s.56(5) would prevent that. That reproduced the position under the Act’s predecessor legislation. It would have been remarkable had Parliament intended to remove the protection given by the previous legislation to students on work placements against discrimination by the provider. Although it was possible that the Act had been intended to mean that all claims in relation to student work placements fell under Pt 6 and could be litigated in the same forum, it was nevertheless possible on the Marleasing approach to construe s.56(5) so as to afford students a remedy under Pt 5, which included s.55. It was not a fundamental feature of the legislation that claims should be allocated to one forum rather than another, at the cost of substantive protection against discrimination. It was not possible to fill the lacuna in protection, as the trust suggested, by a claim under s.91, taking an approach to s.109 and s.110 which treated the relationship of a university and a provider in every case as one of principal and agent. That would not be the relationship in every case. Section 56(5) did not operate to deprive the tribunal of jurisdiction to determine B’s complaint (paras 46-57, 63).
The court summarised the effect of s.55 and s.56. The starting point was to identify whether the student’s complaint was about discriminatory access to a work placement or discrimination during the placement. If it was about access, it could only be brought under s.91 and in the county court. The primary claim would be against the university, but if the provider had induced or aided any contravention it would be secondarily liable under s.111 or s.112. If the complaint was about discrimination by the provider in the course of the work placement, the provider would typically have done the act complained of as principal and would be primarily liable under s.55, the forum for proceedings being the employment tribunal. There could be untypical cases where the act was done by the provider as the university’s agent; both university and provider would be liable under s.109(2) and s.110(1), but the liability would still arise under s.55, so the tribunal would be the correct forum whether the claimant chose to process against one of them or against both (para.61).
For the appellant: Christopher Milsom, Rachel Barrett
For the respondent: Edward Pepperall QC, Jonathan Meichen
For the appellant: Bailey Wright & Co
For the respondent: In-house solicitor
Approved – 23 pages
R (on the application of (1) FR (ALBANIA) (2) KL (ALBANIA)) v SECRETARY OF STATE FOR THE HOME DEPARTMENT (2016)
 EWCA Civ 605
CA (Civ Div) (Davis LJ, Beatson LJ, Lindblom LJ) 23/06/2016
IMMIGRATION – ADMINISTRATIVE LAW
ASYLUM SEEKERS : CERTIFICATION : MINISTERS’ POWERS AND DUTIES : PERSECUTION : REFUGEES : NATIONALITY, IMMIGRATION AND ASYLUM ACT 2002 s.94(3) : EUROPEAN CONVENTION ON HUMAN RIGHTS 1950 art.3
The court set aside decisions of the secretary of state certifying the claims for refugee status of two asylum seekers as “clearly unfounded” under the Nationality, Immigration and Asylum Act 2002 s.94(3). The claims did not admit of only one answer before a First-tier Tribunal properly directing itself as to the law and the evidence, and were not therefore bound to fail.
Two asylum seekers (F and K) applied for judicial review of decisions of the defendant secretary of state to certify their applications for refugee status as “clearly unfounded” under the Nationality, Immigration and Asylum Act 2002 s.94(3).
K claimed that if returned he had a well-founded fear of persecution in Albania as a result of a blood feud. F’s claim on behalf of herself and her three children was also based on a fear of persecution as a result of a blood feud, and on a fear of domestic violence by her husband and her family. It was also based on her mental health and the impact on her ability to care for her children. The secretary of state had issued guidance to caseworkers making decisions on certification of such claims. F and K’s decision letters focused on the substantive claims for asylum before dealing with certification. Applications for judicial review had been refused. Their appeals against those refusals were allowed by the instant court and the substantive applications heard.
(1) It could not be said that K’s claim that there was a blood feud admitted of only one answer before a tribunal properly directing itself as to the law and the facts. In the light of the guidance in EH (Blood Feuds: Albania), Re  UKUT 348 (IAC), and the secretary of state’s acceptance of the position regarding the area of Albania K was from, it could also not be said that the challenge to the “sufficiency of protection” part of K’s case admitted of only one answer before a tribunal, EH applied. The unparticularised nature of K’s account about the reach of the family he feared might well mean that a tribunal would not accept that internal relocation was precluded, or that, if there was such relocation, national protection would not suffice. The question was whether, on the basis of K’s account and the objective evidence, the secretary of state was required to certify his case. It was not clear from the decision letter that the secretary of state had taken K’s case at its highest or that she had asked the question required in order to certify a claim, namely whether the claim, or the relevant part of it, admitted of only one answer before a tribunal and would be bound to fail. A tribunal properly directing itself could infer that the family K feared had a reach throughout Albania, R. (on the application of L) v Secretary of State for the Home Department  EWCA Civ 25,  1 W.L.R. 1230 and ZT (Kosovo) v Secretary of State for the Home Department  UKHL 6,  1 W.L.R. 348 applied. On one legitimate view, the claim might therefore succeed and was not clearly unfounded. The certification decision would be set aside (see paras 86-100 of judgment).
(2) The secretary of state had been entitled to conclude that F’s claim that she and her son were targets of an active blood feud was clearly unfounded, EH applied. The validity of the certification depended on the contention that relocation would be “unduly harsh” being clearly unfounded. The threshold was high, particularly where the persecution feared was by non-state agents, Januzi v Secretary of State for the Home Department  UKHL 5,  2 A.C. 426 followed. The objective evidence was that, although the standards that prevailed in Albania were lower than those in the UK, F would be able to live a relatively normal life there, judged by the standards prevailing there. It was not argued that F’s mental health issues were such that ECHR art.3 was engaged. However, the issues that had arisen in relation to the impact of her mental health on her children, and the relationship between the decisions on her asylum and human rights claims, meant that the facts of her case did not admit of only one answer before a tribunal properly directing itself. There was a reasonable doubt as to whether her claim might succeed and, therefore, it was not clearly unfounded, ZT (Kosovo) applied. The decision to certify her claim would be set aside (paras 101-118).
(3) Neither a claimant nor the court should assume that the secretary of state’s guidance was not being applied. They were, however, entitled to scrutinise decision letters and to consider the language in the context of the evidence before the decision-maker. The decision letters in the instant cases followed a pattern that was commonly used. They dealt with the asylum applications in detail and at length, but dealt with certification very briefly, in effect certifying the reasons given for rejecting the asylum claim. There was nothing wrong in the certification decision relying implicitly on the reasons for refusing the asylum application. However, it was important that the different requirements for the separate decisions were kept in mind and given separate consideration, W v Secretary of State for the Home Department  EWCA Civ 82, Times, April 4, 2016 considered. It had to be borne in mind that the presumption of regularity was an evidential presumption and, where the exercise of governmental power affected fundamental common law or Convention rights such as access to an independent court or tribunal, the decision-maker had to demonstrate that account had been taken of relevant matters and that the correct test had been applied, Bugdaycay v Secretary of State for the Home Department  A.C. 514 considered (paras 96-100).