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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Moyhing v. Homerton University Hospitals NHS Trust & Ors [2005] UKEAT 0851_04_0305 (3 May 2005) URL: http://www.bailii.org/uk/cases/UKEAT/2005/0851_04_0305.html Cite as: [2005] UKEAT 0851_04_0305, [2005] UKEAT 851_4_305

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APPEARANCES

 

For the Appellant	MS NAOMI CUNNINGHAM Free Representation Unit 6th Floor 289-293 High Holborn London WC1V 7HZ
For the First, Second and Third Respondents For the Fourth Respondent	MR THOMAS LINDEN (of Counsel) Instructed by: Messrs Capsticks General Accident Building 77-83 Upper Richmond Road Putney London SW15 2TT MR ANDREW TABACHNIK (of Counsel) Instructed by: Messrs RadcliffesLeBrasseur 5 Great College Street Westminster London SW1P 3SJ


 
SUMMARY

AIDING AND ABETTING; DISCRIMINATION BY OTHER BODIES

The parties took part in an Employment Tribunal hearing of a preliminary issue as to whether, in a case where the Appellant alleged a discriminatory practice in the course of his nurse's training, the NHS Trust Respondents, against whom he brought a claim under s14 of the Sex Discrimination Act, were the agents of the University Respondents. The Employment Tribunal found that the Trusts were such agents, and that the Appellant's claim could thus not be brought against them in the Employment Tribunal under s14, but only in the County Court as aiders and abettors of the University under s22. Found (upon Appellant withdrawing at the Employment Appeal Tribunal a concession made below as to the construction of s14(2))

(i) s14(2) does not have the effect of preventing a primary claim under s14(1) simply because the alleged discriminator was also acting as the agent of an educational establishment suable under s22

(ii) (ii) in any event, the onus being upon the NHS Respondents to oust the jurisdiction, if such agency were relevant, the NHS Respondents had failed to establish it.


 


THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

1. This has been the hearing of an appeal by the Applicant, Mr Andrew Moyhing, against the unanimous decision of the Employment Tribunal at London Central that the Employment Tribunal does not have jurisdiction to hear his complaint. The parties to the Employment Tribunal hearing, apart from the Applicant, were three related Respondents, Homerton University Hospital NHS Trust, Barts & The London NHS Trust and Tower Hamlets Primary Care Trust, whom we shall call "the Trusts", and the City University as Fifth Respondent, whom we shall call "City".
2. The claim which was brought against the three Respondents was that they were liable for discrimination under the Sex Discrimination Act 1975 ("the Act") by reference to s14 of the Act, to which we will refer.
3. The case brought against the Fifth Respondent, City, was that it aided and abetted that discrimination. Once the finding was made unanimously that there was no jurisdiction in the Tribunal to adjudicate on the claim under s14 against the Trusts, the claim against City as aider and abettor in the Employment Tribunal fell away additionally.
4. The issue underlying the question of jurisdiction, which was addressed as a preliminary issue by the Tribunal, is set out in paragraph 2 of its Judgment which was, after a hearing on 17 and 20 September 2004, delivered in Reasons sent to the parties on 22 September. It was summarised as follows:

"The Applicant was a student nurse, undertaking a degree at City University, and is male. His complaint is that when on practical placements with the Trusts … he was not allowed to carry out certain procedures on females, whereas, insofar as physiologically possible, female students were allowed to carry out the same procedures on males".

He bases on that assertion of discrimination, a claim optimistically (as he in fact, as we understand, succeeded in qualifying as a nurse) estimated at some £320,000.

5. We are not dealing in any way with the merits either of the claim or, in particular, of that quantum, but only with the issue of jurisdiction. It appears that the parties were, as a result of an earlier preliminary hearing before the Tribunal, differently constituted, namely by Mr Buckley alone on 30 January 2004, intending at the hearing on 15 June 2004, to resolve three different preliminary issues, one of which was a time limit claim. When the matter came on for that second hearing before Miss Potter, the Chairman then sitting, it appears that she took her own view about how the proceedings should be dealt with: and instead of resolving the preliminary issues which had been intended to be dealt with, she introduced a further set of preliminary issues with which the parties and, in particular the Trusts who were eventually to be the beneficiaries of rulings on those issues, acquiesced, but, as we understand it, it was not at the initiative of any of the parties that this arose. The preliminary issues are those which were then heard before the third Tribunal hearing, now chaired by Mr Baron, which gave the judgment on jurisdiction to which we have referred.
6. We want to make it clear, as will become apparent from our judgment, that we very much regret that this course was followed in any event, and that the preliminary issues which were intended to be resolved in June 2004 were not then resolved, thus enabling what we suspect would have been the case, namely that the resolution of the underlying substantive claims, if they had survived the preliminary issues, would have themselves by now been resolved. As it is, we are nearly a year on and still no benefit in terms of substance has been achieved.
7. The facts were helpfully agreed by the parties for the purpose of the September 2004 hearing. Put shortly, the nursing qualification now requires a degree, consisting partly of academic education and partly of practical placement. In the relevant region, there is a body called "NELSHA" – North East London Strategic Health Authority. This body was originally the first respondent in these proceedings but, in circumstances not disclosed to us, there has been some kind of settlement between the Applicant and that body, and its involvement is now not material so far as the surviving Respondents are concerned. The existence of NELSHA is of some significance. It is apparently a replacement for an earlier body which was called The Central and East London Education Consortium. It is supported or manned by various universities in the region, including the Fifth Respondent, City, and by various trusts, including the Trusts. As we understand it, the body, that is NELSHA, arranges with universities such as City to provide academic education for student nurses. There is an agreement which is in the bundle, and was before the Employment Tribunal, which has been called the Treknet Agreement, an Agreement for the Provision of Pre- and Post- Registration Nursing and Midwifery Education and Training, which is the applicable agreement, albeit originally entered into between the earlier Consortium, to which we have referred, and a company called Treknet Limited. It is common ground that the provisions of that agreement applied at all material times as between NELSHA and City, Treknet Limited being in some way associated with the university. That is the first line of agreement: between NELSHA and a body providing the wherewithal for nurses to be qualified, and that is what one might call the educational line.
8. The second arrangement is that NELSHA arranges with NHS Trusts such as the Trusts to provide placements for those student nurses. The agreed facts recite in this regard as follows:

"2. City University runs a BSc in Nursing Programme from the St Bartholomew School of Nursing and Midwifery. It is a three year programme which is split up into various modules. Each module consists of theory sessions and clinical placements. The programme is approved by the Nursing and Midwifery Council, and, accordingly, the content of the programme and its details are governed by the Council. The Nursing and Midwifery Council has provided guidance on the training requirements. The guidance requires that any training should comprise of 50% theory and 50% practical training, i.e. clinical placements. The theory part of the training is undertaken at City University and the practical part is carried out at an NHS Trust."

9. Under paragraph 10:

"[NELSHA] contracts with the relevant Trusts to ensure that clinical placements are available to the establishments, including City University, which run the nursing courses. There is no contract between City University and the relevant Trusts, but the University carries out an educational audit of each potential placement area to ensure that it meets the University's educational and training requirements before placements commence in that area".

That is the second line of arrangement or agreement, namely between NELSHA and the relevant NHS Trusts, which could be called the "training line".

10. Thirdly, there is an agreement between the City University and the student nurse. We have a copy of that document, as signed between the Applicant and City, for a programme commencement date of 11 September 2000. Clause 3 of that document reads as follows:

"3. The Programme.

3.1. The University undertakes that in consideration for the Student complying with the provisions of this Agreement and those of any documents incorporated into this Agreement and in consideration for the Student meeting the academic and any other requirements of the University and those of any other body involved in the Programme it will provide to the Student adequate tuition and supervision of professional quality in respect of a programme of academic study and practical experience leading to the award of a BSc (Hons) in Nursing.

3.2. The Programme will consist of academic study at the School and practical placements at such Clinical Placement Areas as are notified to the Student."

11. The Trusts receive no payment for providing their services: see paragraph 17 of the Agreed Statement of Facts. The Agreed Statement of Facts in that paragraph continues:

"The Trusts benefit from the arrangement in one or both of two ways: in potential future recruitment of qualified nurses, and in the work carried out by student nurses while they are on placement."

12. Paragraph 23 of the Tribunal's Judgment records that the universities, including City, are paid by NELSHA to provide their services. There is thus a tripartite arrangement, headed up at the top by NELSHA, in which both the universities and the NHS Trusts are represented, whereby NELSHA, so constituted, agrees with a number of different trainers to provide training, and with a number of different universities to provide educational places for the students. As we have indicated by referring to paragraph 10 of the Statement of Facts, there was a supervisory obligation upon the universities, and, in particular, on City in this case, to ensure that the clinical placement was up to standard, and that audit was carried out by a link lecturer, who attends the ward or clinical placement area and meets with a senior member of clinical staff such as the ward sister. Paragraph 10 of the Statement of Facts records that the Trusts carry out no reverse audit i.e. no educational audit of any nature in relation to the activities of the university.
13. The arrangements between NELSHA and City to which we have referred describe City as the Provider and the services, which by Clause 3 of the Treknet Agreement City is to provide, include, as set out in paragraph 3.2, not only the provision of the education (see Clause 4 of the Treknet Agreement), but also, by Clause 3.2.3, arrangement of the clinical placements (Clause 8).
14. As we have earlier described, and is agreed as part of the Agreed Facts, the placements are in fact arranged by NELSHA direct with the Trusts who make a number of clinical placements available so that, to that extent, City does not have to find its own placements but will allocate the students, always subject to its two yearly quality audit, to the placements which have been allocated by NELSHA. By Clause 8 of the Treknet Agreement, there are obligations placed upon City including the following:

"8.1 The standards and supervision of the Clinical Placements shall conform to the standards laid down by the Approving Bodies."

The Approving Bodies are defined as being organisations responsible for approving, accrediting or validating the education provision.

"8.2 Each Clinical Placement shall be covered by a signed written agreement between the Provider and the HSB provider of the Clinical Placement [that is defined as the Health Service Body as defined by the National Health Service and Community Care Act 1990 as amended, and includes local authorities and the voluntary sector organisations within the National Health Service Executive London Region] … the terms of which agreement shall be subject to prior written approval of NELSHA. "

15. By Clause 8.6, NELSHA shall notify City of the number and the location of the clinical placements for pre-registration students available within the National Health Service Executive London Region for a relevant contract year; and by Clause 8.6.2, City will be responsible for organising, but shall have no obligation to contribute to the cost of, providing pre-registration clinical placements. By Clause 8.6.4:

"In the event that the number of Pre-Registration Clinical Placements notified to [City] shall not be sufficient to meet the needs of the Pre-Registration Students in any Contract Year, [City] and [NELSHA] shall jointly identify suitable Clinical Units where … Placements can be provided and use their best endeavours to obtain from those Clinical Units the supply of Clinical Placements. Subject to prior approval by [NELSHA], which shall not be unreasonably withheld or delayed, [City] may then enter into arrangements with other Clinical Units within the National Health Service Executive London Region, or failing them, with Clinical Units outside that Region and the reasonable additional costs … shall be borne by [NELSHA]."

16. Although it is provided in Clause 8.2 of the Treknet Agreement, to which we have referred, that each clinical placement would be covered by a signed written agreement between City and the HSB provider of the clinical placement, it appears that none were in the event finalised or, in particular, executed. By paragraph 16 of the Agreed Facts in this case, the following is stated:

"The working arrangement in practice is in accordance with the draft 'Model National Partnership Agreement between Higher Education Institutions and NHS Trusts and Other Organisations involved in the provisions of practice learning experiences' dated 10 September 2003".

That draft document ("the MPNA") is in our bundle, and it has a recital which says that the provision of quality education and training of health care professionals depends on an effective partnership between the Higher Education Institution, that is universities such as City, the Work Place Development Confederation (which, it is common ground, is replaced by NELSHA which is, of course, a body which, as we have indicated, consists partly of universities and partly of NHS Trusts) and the NHS Trusts and/or other organisations involved in providing practice learning experiences. The MPNA then continues:

"This Partnership Agreement is designed to supplement the Agreement between the University and NELSHA for the provision of the education and the 'Learning and Development' Agreement between the Trusts/Other Organisations and NELSHA."

We know nothing about the latter Agreement, as to whether any such was ever formulated, namely an agreement between any NHS Trusts and NELSHA, but we do know about the former Agreement, which is the Treknet Agreement.

17. As we have indicated, the MPNA is conceded to form a working basis for the relationship. It is thus, perhaps, significant that the MPNA specifically describes itself as a Partnership Agreement and as being designed "to supplement the Treknet Agreement". That Partnership Agreement refers to the Placement Provider as being the NHS Trusts. In particular, the MPNA provides, by paragraph 5, at page 2, that the Placement Provider, namely the relevant NHS Trust and the University would "work together to ensure that the standards and supervision of the practice learning conform to standards laid down by the relevant professional and statutory body and any locally agreed criteria", and would "co-operate in undertaking joint audits of placement settings".
18. That is the factual context in which the Tribunal came to consider its decision on jurisdiction, the nature of which we will describe. None of the parties called any oral evidence, in particular as to the effect or operation of the agreement: e.g. as to whether there ever arose an occasion in which City was ever called upon to send students to any other placement than one that had been pre-allocated by NELSHA or if ever there was any veto or unsuccessful or disapproving audit by City in relation to the operation of the clinical placements or as to the inter-relationship between the working practice governed by the draft National Partnership Agreement and the Treknet Agreement itself.
19. The legal setting is as follows. S14 of the Act provides as follows:

"(1) It is unlawful, in the case of a woman seeking or undergoing training which would help fit her for any employment, for any person who provides or makes arrangements for the provision of facilities for such training to discriminate against her -

(a) in the terms on which that person affords her access to any training course or other facilities concerned with such training or …

(d) by subjecting her to any detriment during the course of her training.

(2) Subsection (1) does not apply to -

(a) discrimination which is rendered unlawful by section … 22 or 23".

20. A claim of discrimination in relation to the provision of vocational training by an applicant under s14 is vested in the employment tribunal by reference to Part II of the Act. By s22 of the 1975 Act

"It is unlawful in relation to an educational establishment falling within column 1 of the following table for a person indicated in relation to the establishment in column 2 (the "responsible body") to discriminate against a woman -

(a) in the terms in which it offers to admit her to the establishment as a pupil, or …

(c) where she is a pupil of the establishment -

(i) in the way that it affords her access to any benefits, facilities or services or by refusing or deliberately omitting to afford her access to them or

(ii) by excluding her from the establishment or subjecting her to any other detriment".

21. A claim by an applicant in respect of discrimination by bodies in charge of educational establishments under s22 of the Act (such educational establishment or responsible body being those listed in the relevant table) falls within Part III of the Act and by s66 is only justiciable in the County Court.
22. The Trusts were, as they accept, involved in the provision of training, within the meaning of s14 of the Act. Such is accepted in the various Notices of Appearance put in by the Trusts. We quote, by way of example, that by the Second Respondent at paragraph 3 of the Notice of Appearance dated 19 November 2003, well before the articulation by Miss Potter in June 2004 of this preliminary issue:

"By reason of the matters set out in paragraph 2, the Second Respondent believes itself to be a 'person' … concerned with the provision of vocational training' within section 14 of the Sex Discrimination Act 1975".

The claim, as to whose merits we say nothing, would appear to fall squarely within the section, if pursued.

23. The assertion by the Trusts, which has been made the subject of this preliminary issue, is that, in so far as they were providing the vocational training, they were doing so on behalf of City, and were doing it as City's agents. The result of this is said to be that the Trusts cannot be sued in the employment tribunal as alleged discriminators under s14, but must be sued in the County Court, as if they were an educational establishment. The result is, on the face of it, therefore as follows:

24.1 Where a claim has already been initiated against them under s14 in the employment tribunal, a perfectly suitable tribunal, well experienced and qualified to decide an issue of sex discrimination at the instance of an applicant whose case, on the face of it, falls within that section, that claim cannot now be pursued.

24.2 Given that the time may well have (and in this case seemingly has) already expired for bringing such a claim in the County Court, if such claim is to be brought, and thus recommenced, in the County Court, with all the attendant expense and inconvenience, and before a body which is less experienced in deciding sex discrimination cases than an employment tribunal, questions of time may arise and there would need to be an application for an extension of time to bring such proceedings.

24.3 So far as City is concerned, whereas the Applicant has chosen to bring his claim on the basis that the trainers, the Trusts, are responsible under s14, and that City, if liable at all, is liable as an aider and abettor of the breach of s14, the Applicant must now be driven to regard City and, if and as appropriate, sue City, as the primary tortfeasor under s22, and to add the Trusts, not as primary tortfeasors, but as aiders and abettors of the primary tortfeasor, under s22.

24. It is in that situation that City's complaint arises. The Applicant's complaint is obvious, that is that he wishes to continue his claim as brought. City's complaint is that, whereas it would vigorously resist the suit in the employment tribunal as unfounded, it recognises that there may be a claim which it must meet by way of an allegation of knowingly aiding and abetting, the relevant section of the Act being s42(1):

"A person who knowingly aids another person to do an act made unlawful by this Act shall be treated for the purposes of this Act as himself doing an unlawful act of the like description."

If, however, they are sued as a primary tortfeasor, then there will be no requirement to prove that they knowingly aided because they will be primarily liable, and they may find themselves vicariously liable for the acts of their alleged agents, without the benefit of the statutory defence, which is available for employers but not for principals, by reference to s41(3) of the Act which reads as follows:

"In proceedings brought under this Act against any person in respect of an act alleged to have been done by an employee of his it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment acts of that description".

25. In this regard, therefore, somewhat unusual bedfellows are created, namely the Applicant, for whom Ms Naomi Cunningham appeared below and again before us on appeal, and City, against whom the Applicant has a claim of aiding and abetting on any basis as we have described, represented before us and below by Mr Tom Linden, but, in this case, supporting the Appellant's appeal.
26. Why is it then that the Trusts are able to say and, indeed, successfully so before the Employment Tribunal, that they are agents of City, and that, as a result, they cannot be sued in the Employment Tribunal, the Employment Tribunal has no jurisdiction and if it can be, the claim must be recommenced in the County Court? We have read s14 to which we shall return. The other relevant sections which require to be considered are as follows:

"41(2) Anything done by a person as agent for another person with the authority (whether express or implied, and whether precedent or subsequent) of that other person shall be treated for the purposes of this Act as done by that other person as well as by him".

"42(2) For the purposes of subsection (1) [the section we have already recited – knowingly aiding and abetting] an employee or agent for whose act the employer or principal is liable under section 41 (or would be so liable but for section 41(3)) shall be deemed to aid the doing of the act by the employer or principal".

27. If the Trusts were agents of City, they would, by virtue of s41(2), be treated as having done the act complained of, which is the discriminatory act, as well as City. What was submitted by the Trusts was that, as City can only be sued in the County Court under s22, so the Trusts can also only be sued in the County Court as aiders and abettors of the tort created by s22; and as they can and should thus be sued in the County Court as aiders and abettors of a s22 tort, they cannot be sued in the tribunal under s14.
28. The necessary argument which Mr Tabachnik of Counsel put forward before us on appeal is that this arises because of the construction of s14(2). We should immediately say that this construction, if not addressed at all below, was not addressed because of the concession that appears to have been made by Ms Cunningham on behalf of the Applicant, when faced with the preliminary issues originating from Miss Potter's hearing, that it was to be necessary to resolve the issue as to whether or not the Trusts were the agents of City, and that if, in fact, the Trusts were the agents of City, they could indeed only be sued in the County Court, and the case against them in the Employment Tribunal fell away. There was thus a concession that the consequence of the Trusts being found to be City's agents was a finding of no jurisdiction, and it was in that context that the hearing went ahead in front of the Tribunal. The Tribunal resolved that the Trusts were agents of City, and, having so resolved, as a result of the common ground flowing from Ms Cunningham's concession, there was found to be no jurisdiction in the Employment Tribunal.
29. We indicated, in advance of the hearing, to the parties that we were uncomfortable with that construction of s14(2), and that indeed our provisional view was to the contrary, and we invited submissions from all sides about it. The result was that Miss Cunningham sought to withdraw the concession made below and, very properly, such withdrawal was not opposed by Mr Tabachnik. Mr Linden expressed neutrality, but clearly a result so far as he is concerned, if it went towards success on Miss Cunningham's appeal, would only assist the position that his clients desire.
30. In the light of the fact that the concession has been withdrawn and of Mr Tabachnik's very proper lack of opposition to that, we now have to resolve the issue as to whether indeed the effect of s14(2) is that which Mr Tabachnik alleges, and Ms Cunningham and Mr Linden oppose. What is plain from what we have read by reference to s41(2) and s42(2) and, indeed, the parties do not disagree with this, is that by virtue of the finding of agency, a party becomes secondarily liable, not primarily liable, for the relevant tort i.e. liable as a deemed aider and abettor under s42(2). What therefore, as is not disputed, s41(2) does, on the facts of this case, if it turns out that the Trusts were agents of City, is that in addition to their alleged liability under s14, they also have an alleged secondary liability as aiders and abettors of a s22 tort.
31. On the face of it, even if exclusive jurisdiction to try the s22 tort lies in the County Court, why should not the Employment Tribunal retain jurisdiction to sue the s14 tort? Interestingly, to which we shall come back, one of the proposed preliminary issues listed by Miss Potter at the June 2004 hearing, to which we have referred, raised the question: "If the Trusts committed acts unlawful under Part II [that is under s14], and City aided them or any of them, does City's secondary liability for aiding unlawful acts fall under Part II?" That was never contested in the event, and it appears to have gone by way of common ground, namely that if the Trusts are not the agents of City - leaving aside that argument - and the case were to continue in the Employment Tribunal under s14 against the Trust Respondents, there is no jurisdictional objection to City not being sued in the County Court, but being sued in the employment tribunal - of course, not in respect of their s22 tort, for which the County Court would have exclusive jurisdiction, but in respect of their alleged secondary liability under s14.
32. That common ground, which went uncontested, has some relevance when one comes to consider the reverse position, where it is said here that the secondary liability, if it exists, of the Trusts not only can itself only be tried in the County Court, but that its very existence prevents the Trusts' alleged primary liability under s14 being adjudicated in the employment tribunal, where it has its natural home.
33. An extremely odd result is thus created, if that is the case. This first odd effect is that a trainer, if we can so call someone who is responsible for a training course, which is said to be liable under s14 and is sued in the Employment Tribunal alone for breach of s14, can block jurisdiction by revealing that it was acting as agent for an educational institution, one whose identity may not even need to have been previously disclosed.
34. Secondly, Mr Tabachnik accepts in his Skeleton Argument, and indeed adopts as part of his answer to what one might call the compassionate plea of Mr Linden that the result of City's being sued as a principal tortfeasor might be the loss of its statutory defence, to which we referred, under s41(3), the obiter dicta of Judge McMullen QC in the case of Victor-Davies v London Borough of Hackney [2003] EAT1269/01 unreported, in particular at paragraph 33. What Judge McMullen QC there suggested, and what the parties before us accepted may well be the case, is that a principal will be able to seek to avoid liability for the acts of its agent if it can show – we say nothing about where the onus in fact arises by using this language – that the agent was acting outside its authority. This is because s41(2) requires that, for the principal to be liable for the agent, the acts of the agent must be with its authority, whether express or implied, and whether precedent or subsequent. This would mean that someone who prima facie appeared to be an agent may not, depending upon the eventual findings, turn out to be an agent for whom the principal was responsible. Hence, if this be right, a trainer could avoid jurisdiction and liability under s14 in the Employment Tribunal, by asserting that it was an agent of an educational institution, procuring that instead a suit had to be brought in the County Court based under s22 against the educational institution as principal and against the trainer as an agent and aider and abettor: and then the case might be proved in the County Court as against the agent that the agent, in fact, committed an act of discrimination, but, because of the principal's defence of showing that, for example, there was an express prohibition upon the alleged act, or something of that kind, the agency is disproved, and if the agency is disproved, the result is that there is no claim under s22 against the educational institution, and if no claim under s22 against the educational institution, then no claim under s22 against the trainer, who ought, all the time, to have been sued back in the Employment Tribunal under s14.
35. What the effect of all that would be as to whether there would be some estoppel preventing a claimant going back to the Employment Tribunal and starting again under s14 is not for us to decide, not least because time would by then have passed, which would need to be surmounted: but it would certainly lead to the expenditure of costs and a waste of time which would bring the tribunals and the courts into disrepute.
36. It is against this background that we turn to s14 to consider whether this kind of situation is really what was intended by s14. We have read it. S14(1) establishes the tort, and s14(2), relevantly for these purposes, indicates that subsection 1 "does not apply" to discrimination which is rendered unlawful by s22. The obvious applicability of this section is to the straightforward case where a claim is brought, for example, by reference to s14 - provision of vocational training - against an educational establishment which is listed in the list under s22; and the answer then is straightforward that the educational establishment can only be sued under s22, and not under s14. It is not an alternative remedy, there is only one remedy that is available, and it can only be sued in one place, and that place is the County Court. For whatever reason the County Court was thought more apt to adjudicate on educational questions, and no doubt it was concluded that an employment tribunal would be better equipped to deal with questions of vocational training, which are closer to employment questions, and perhaps more likely to be carried out at a work place. But the intention of Parliament was, in our judgment, purely to avoid any question of duplication, or doubt as to where an educational establishment should be sued. There is, in our judgment, no need, putting it at its lowest, for s14(2) to apply in a case such as this, namely where there is a perfectly arguable claim under s14, the same facts underlying which may also give rise to a perfectly arguable claim for aiding and abetting a tort under s22.
37. Mr Tabachnik rightly accepts that it is and would be sensible, if there is an existing claim going forward in the employment tribunal under s14, for an educational establishment who could only be sued by way of primary liability for a s22 tort in the County Court to be joined as an aider and abettor of the s14 tort, so that all parties can be tried together. So in our judgment here. Even if there be an agency case, even if there were an alternative way of putting the claim if City had been sued in the County Court under s22 (so that there could have been joinder of the Trusts as aiders and abettors and/or agents such that both were tried together in the County Court), where, as here, the claim is already proceeding in the Tribunal, it is not, in our judgment, the purpose of s14(2) that it should be used to banish the perfectly arguable liability from where it ought to be pursued. It is normally a claimant who is cast in the role of asserting that someone is a principal and/or an agent, in order to expand the number of defendants, particularly in cases where there is an absent or insolvent defendant and it is sought to expand the areas of liability. It is in this case strikingly unusual that it is a party, otherwise suable, whether they be principal or agent, under s14 which is seeking to assert an agency, against the cases of both the claimant and the alleged principal, in order to exclude its own liability and avoid jurisdiction. We are satisfied that the concession was rightly withdrawn, and that, on a true and proper construction of s14(2), if there is a good cause of action for primary liability under s14, the parallel existence of secondary liability against the same party under s22 does not prevent the s14 liability being pursued in the employment tribunal. Consequently, the words in s14(2) subsection (1) "does not apply to discrimination which is rendered unlawful by s22" carry only the limited meaning that a s22 tort can only be pursued in the County Court. They do not carry the meaning that a s14 tort, by a party not listed in the table to s22, cannot be pursued in the employment tribunal because there may be a parallel case against it under s22.
38. This whole exercise, therefore, before the Employment Tribunal was an unnecessary one, and the fact that it was unnecessary is only vindicated by what has, in fact, occurred. We add however three factors which render the interlocutory decision on jurisdiction plainly inappropriate.
39. The first matter is that the whole question of the scope of authority was not raised in the Employment Tribunal. It appears to us that it may only have become specifically important now, when thoughts are given for the purposes of an appeal as to particular prejudice suffered by the various parties. But there is no doubt that the case of Victor-Davies and the dicta of Judge McMullen QC were addressed by the Employment Tribunal in paragraphs 66 to 68 of its judgment, and reference is made to the problems arising thereout. If, indeed, there was to be a decision, as a matter of jurisdiction, that the existence of the claim of agency ousted the jurisdiction of the Employment Tribunal, it could only, in our judgment, be relevant if it was going to oust the jurisdiction of the Employment Tribunal for good. Any chance whatever that, after transfer out of the Employment Tribunal it might subsequently be found that, although there was an agency, the agent had exceeded his or her authority should, in our judgment, have prevented it being appropriate to make a preliminary decision of jurisdiction, with all its consequences, in any event.
40. The second factor which arises out of the inevitable result of the preliminary issue, namely a finding of no jurisdiction, is that it can only be in very clear cases if, indeed, it were the case that jurisdiction was to hang upon it that it, would be appropriate to enter into this exercise; and, as we shall indicate in early course, this was not a case in which we are satisfied that this issue could be resolved, at any rate, conclusively, on paper.
41. Thirdly, and most important, perhaps because of the existence of the concession, the question of where the onus lay was overlooked by the Tribunal and by all the parties. This was not a case, as we have indicated, in which the Applicant was seeking to allege that anyone was either a principal or an agent. Indeed, as we have indicated, if anything, the Applicant, in so far as he could, was resisting the case of agency. It was the Trusts who were raising and seeking to establish and establish, sufficiently to oust jurisdiction for good, a case of agency. They were seeking an exclusionary decision, reliance upon the exception provided by s42 of the Act. Mr Tabachnik has fairly accepted that the onus lies and lay on him. It is wholly apparent that the Tribunal did not address that issue at all.
42. We mention those problems now because they only underline our firm conclusion that this is not an exercise that should have been entered into, and that jurisdiction does not and should not hang on a decision as to whether the Trusts were or were not agents for City, and that the claim against the Trusts are under s14 should have proceeded irrespective of whether they happened to be agents, or to be acting within or without their authority as such agent if they ever were an agent. Consequently, it only confirms our view that this appeal should be allowed on that basis alone.
43. However, as the matter of agency has been argued before us, we shall proceed to consider that question in any event, albeit that it is superfluous in the light of our decision that, upon the withdrawing of the concession, this appeal should be allowed.
44. We have already summarised the facts as they were appearing from the documents. The Employment Tribunal appears to have rested its decision very heavily upon the authority of Lana v Positive Action Training In Housing London Limited [2001] IRLR 501, a decision of the Employment Appeal Tribunal, given by Mr Recorder Langstaff QC. The situation there was not similar to the present. No question of s22 of the Act arose, but s14 was certainly in play. An applicant, who was a trainee quantity surveyor with a company called Walker Management, complained of sex discrimination. For reasons for which are not apparent to us, she did not sue Walker Management. It may be that she was out of time to sue them, it may be that they were not solvent, but at any rate they were not sued. They did the training and they allegedly discriminated against her. She was placed as a trainee quantity surveyor with Walker Management by a company Positive Action Training In Housing London Limited which we shall call "PAT" and the only claim that was made was brought against PAT. It was found that PAT, which had apparently taken the applicant off their books when and after the applicant had been dismissed on grounds of pregnancy by Walker Management, were not only liable in respect of whatever act they may have committed themselves, but also as vicariously liable for Walker Management which was said to be their agent for the purpose. PAT had no other role, it appears, than placing such people as the applicants for training. They were responsible for such placement, and it was found that there was an agency between PAT and Walker Management, so that PAT was arguably liable under s14, and Walker Management, on that basis, would have been their agent and would, no doubt, if they had been sued, have been addressed on the basis of aiding and abetting their principal under s42(2) of the Act. But, of course, s42(2) of the Act was not addressed either, because Walker Management was not joined. There may be many cases where the case has to be made against an alleged principal because the actual discriminator, who is alleged to be the agent, is either not sued or not solvent. This is a case, however, where there is a present, and solvent, alleged discriminator who is said to be an agent, and it is that agent which is asserting the agency, in order to avoid the jurisdiction of the Employment Tribunal. Normally, agency is alleged for the purpose of making the principal liable. Here, the agency is alleged for the purpose of the agent, who was the actual discriminator, allegedly avoiding liability. That does not, of course, prevent the proper and full consideration of the factual situation, but it does appear, as we have indicated, that the situation here is nothing like so simple as it was where a training agency was simply placing a trainee with an employer to be trained.
45. We have been impressed by Mr Tabachnik's submissions, by reference to the Treknet contract, that NELSHA imposed upon City an obligation not only to provide the education but also certain supervisory obligations in relation to the provision of the clinical placements; and, indeed, subject always to the fact that the clinical placements were, in general terms, allocated by NELSHA, the services which City were said to be under an obligation to provide by Clause 3.2.3 included the "arrangement of the Clinical Placements". Mr Tabachnik has set out in his helpful Skeleton Argument the matters on which he relies, and he sets out not only those arrangements but also the audit of the Clinical Placement Providers by City, to which we have referred and, indeed, the Agreed Facts, at paragraph 10, positively provide that if the clinical placement area did not meet the university's requirements for a suitable practice area, students would not be allocated to that area. It is City alone which awards the degree, and Mr Tabachnik points to the Agreement between the Applicant and City at Clause 3, to which we have referred.
46. If one looks alone at the contract between the Applicant and City, City is indeed promising to provide both the education and the practical placement, albeit that both sides to that agreement know that the university will do nothing of the kind. But, leaving aside the fact that that was simply an agreement between the Applicant and the university, and does not necessarily impinge upon the relationship between the university and the Trusts, Mr Tabachnik relies further upon other matters, including the degree of control and supervision as between the university and the Trusts. There is plainly a substantial case to be made that the relationship between the Trusts and City was one of principal and agent.
47. The decision of the Employment Tribunal, as we have indicated, appears to rest primarily upon the difficulty which the Tribunal had in distinguishing the case of Lana which, it concluded, led ineluctably to the decision that the case was on all fours with Lana. We have already indicated that we do not see that this was anywhere near decided by the facts of Lana, which were both entirely simple, as this is not, and in many ways different.
48. What, however, has affected us considerably are the following three matters. First, as we have said, it is apparent to us that the Employment Tribunal did not apply its mind to the onus of proof. In so far as it applied any question of onus at all, it would inevitably have by instinct been deciding the onus in what could be regarded as the usual way, namely: Has the Applicant proved that there was no agency relationship between City and the Trusts? If that was not the basis upon which the Tribunal addressed it, we certainly have no assistance as to the basis upon which they did address it, and there can be no blame attached to them alone in this regard because, as we have indicated, the question of onus was not addressed by anyone; but there is certainly no sign at all of the Tribunal asking itself whether the Trusts have proved their case that they were agents, which as we have set out above, was the correct approach. This enables us on any basis, without trespassing against the appellate duty which Mr Tabachnik has courteously reminded us, to reconsider the issue to see whether the Tribunal came to the correct conclusion, albeit without addressing the issue of onus, or whether they did not, and how the issue of onus impinges on the question.
49. Secondly, we have already mentioned the fact that there was no oral evidence before the Tribunal in this case. It was, as we have indicated already several times, not a sensible course to have taken in any event: but if there was to be a final decision on agency, we would have wished there to have been considerably more evidence than there was.
50. Thirdly, and most significantly, we are impressed by the arguments of Miss Cunningham and Mr Linden as to looking at the total structure here, and not simply at the Treknet Agreement or the Agreement between the Applicant and City. The total structure here is that this was, in general terms, a joint venture; a joint venture between hospitals who had the interest, as we have cited from the Agreed Facts, of developing the number and quality of nurses by involving universities in their education, and universities who, albeit one should no doubt not mention the word money in that context, would appear primarily to have been motivated, if not primarily certainly substantially, by commercial reasons, because they, and they alone, expected to be paid for the services they provided. The two together were involved in NELSHA. NELSHA then decided what the structure would be, and not surprisingly allocated the academic side to the universities, and the placement side to the hospitals. NELSHA, being the body, as we have indicated, on which both sides were represented, then decided that there would be a degree of supervision and control allocated to the university in respect of placement: and although it is unclear to us what, if anything, ever did happen, there was the possibility that if the placements provided by NELSHA ran out, there would then be other placements found jointly between NELSHA and the university, possibly in other areas. But there is no doubt at all that whatever might have been thought to be the nature of the joint venture between the parties, the MNPA, to which we have been referred today, and which Mr Tabachnik very frankly explained to us was the document which formed the basis of paragraph 16 of the Agreed Statement of Facts, underlines that this was a partnership between the universities and the National Health Trusts. If this was indeed the agreement anticipated in Clause 8.2 of the Treknet Agreement, namely being "a signed written agreement between the Provider and the HSB provider, the terms of which agreement shall be subject to the prior written approval" of NELSHA, then one would have expected that Agreement to set out the agency arrangement between the Provider (the University) and the HSB provider (the Trusts), which is heralded by the Tribunal judgment and the arguments of Mr Tabachnik. But not only is there no sign at all of such an agency arrangement, to the contrary it is trumpeted as a partnership of the two partners, engaging and working and co-operating together. In those circumstances, if there had been proper consideration of the position by reference to the onus - and we note that there was no direction of the Tribunal's mind towards the MNPA - it may well be that the Tribunal would either have felt itself unable to answer the question without oral evidence, or otherwise it might have decided that the position was not one of agency but one of joint venture.
51. On any basis, we are satisfied that, on the evidence, the limited evidence, that was before the Tribunal, we can say that the Trusts failed to satisfy the burden of proof which was upon them. In those circumstances, if this was indeed an issue as to jurisdiction, the Trusts failed to oust the jurisdiction of the Court, because they failed to prove that they were agents, if that was necessary in order to oust the jurisdiction. We would wish to make it plain that if the issue of agency ever becomes relevant at any stage in the future, all that we say now is that, on the evidence before the Tribunal, the onus of proof was not satisfied. We cannot say that there was any conclusive decision or indeed should have been any conclusive decision by the Tribunal one way or the other.
52. We have already allowed the appeal on the basis that s14(2) was misconstrued and jurisdiction should not have been ousted in any event. We add to that that if jurisdiction hung on the proof by the Trusts that they were agents, they have failed to satisfy the burden of proof. That is sufficient to allow the appeal. What we are anxious now about is, unless of course the parties are able to resolve their differences by conciliation or otherwise, that this trial moves speedily forward in the Employment Tribunal and gets to the merits of what may well be a relatively short case. We would add of course that there will be the issue of knowing aiding and abetting, in which context the precise relationship of the Trusts, NELSHA and City may be of relevance.
53. In those circumstances, this appeal is allowed.