Hainsworth v Ministry of Defence

LORD JUSTICE LAWS: This is an appeal with permission granted by Lewison LJ on 21 November 2013 against a decision of Langstaff J, President of the Employment Appeal Tribunal ("the EAT"), made on 16 July 2013.

The decision was arrived at pursuant to Rule 3(10) of the EAT Rules 1993 and was to the effect that Ground 2 of the Appellant's grounds of appeal to the EAT disclosed no reasonable grounds for bringing the appeal. Ground 2 alleged that:

The Equality and Human Rights Commission (the "EHRC") intervened in the appeal by permission of Underhill LJ granted on 30 April 2014. Mr Mitchell has addressed us on behalf of the EHRC this morning.

"PCP" is an acronym for "provision, criterion or practice", an expression appearing in section 20(3) of the Equality Act 2010, dealing with an employer's duty to make reasonable adjustments for disabled persons. I shall come to the domestic legislation in due course.

The case principally turns upon the proper interpretation of Article 5 of Council Directive 2000/78/EC " . . . establishing a general framework for equal treatment in employment and occupation" ("the Directive"). The relevant part of Article 5 provides:

The facts of the case, as asserted in amended particulars advanced to support what is now Ground 2, are succinctly summarised at paragraph 14 of Mr Pilgerstorfer's skeleton argument. Slightly adapted, the summary is as follows. The Appellant has been employed by the Respondent since 30 April 1998 pursuant to a contract of employment. She is a civilian employee attached to the British armed forces. From 1 September 2004 she was employed as an Inclusion Support Development Teacher.

The Respondent operated a provision, criterion and/or practice ("PCP") whereby the Appellant was required to provide the services required of her within a British enclave in Germany predominantly, but not exclusively, within the Paderborn Garrison (British Forces Germany).

The Appellant was "associated" with her daughter Charlotte, who at the date of the relevant events was 17 years of age. Charlotte has Down's syndrome and is a disabled person within the meaning of section 6 of the Equality Act.

The Respondent, through an executive agency called Service Children's Education, provided facilities for the education of children of service and civilian personnel serving away from the United Kingdom. These facilities included education and training for such children at the Paderborn Garrison. The Respondent did not, however, provide any special schools or training facilities for children in Germany, nor did it provide for children who have more significant needs. Non-disabled children of service and civilian personnel and those whose needs could easily be met within mainstream provision were able to be schooled at the Respondent's facilities in Germany. Owing to her disability, however, Charlotte could not be schooled there.

After a series of informal enquiries, in August 2011 the Appellant submitted a formal request to be transferred to a location within the United Kingdom in order to be able to meet the special needs of her daughter. By a decision of 2 September 2011, that was rejected. Her case is that it would have amounted to a reasonable adjustment to the PCP for the Respondent to have allowed the Appellant's application for a compassionate transfer and to have transferred her employment to the United Kingdom and/or alternatively to have transferred her to a role within the Ministry's organisation here in the United Kingdom.

As I understand it, the Appellant is no longer in the Respondent's employ, having taken severance on 31 August 2013.

The provisions of the Equality Act 2010 relating to disability discrimination are a successor to measures first introduced in the Disability Discrimination Act 1995. Section 39(5) of the 2010 Act imposes a duty to make reasonable adjustments on an employer. The duty comprises three requirements (see section 20(2)). The first requirement is given by section 20(3):

By paragraph 5(1) of Schedule 8 to the 2010 Act "relevant matter" means "deciding to whom to offer employment" and in that case "disabled person" means "a person who is, or has notified A that the person may be an applicant for the employment"; or "relevant matter" may mean "employment by A" and in that case "disabled person" means "an applicant for employment by A" or "an employee of A's".

Given these somewhat Byzantine provisions, the Appellant concedes and conceded before the EAT that on what Mr Pilgerstorfer refers to as "a purely literal approach" to the provisions of the Equality Act, an employer owes a duty to make reasonable adjustments only in respect of a disabled person who is either an applicant for employment with the employer or already his employee (see paragraph 59 of Mr Pilgerstorfer's skeleton). The EHRC make the same concession (see their skeleton, footnote 10 on the third page).

Plainly on the facts of the present case, on that approach to the Equality Act the Appellant's daughter would not be included as a potential beneficiary of the material provisions. However the Appellant's case is that the right she claims, an adjustment to her employment in order to accommodate her disabled daughter's needs, is given to her by the terms of Article 5 of the Directive. If that is right, she says that the Equality Act, notwithstanding its ordinary meaning, should be interpreted or read down so as to give effect to her EU rights in accordance with the well-known principle enunciated in Marleasing [1990] ECR 1-4135 (see paragraph 8 of the judgment) and later cases. Or, if the language of the Equality Act rules out that recourse, then it is said she is entitled to rely directly on Article 5 against the Respondent, which is of course an emanation of the State.

Manifestly, the first question here is whether Article 5 of the Directive supports the Appellant's case at all. Langstaff J (agreeing with HHJ Richardson, who had first considered the prospective appeal on 10 April 2013 under Rule 3(7) of the EAT rules) concluded that the Appellant's case on Article 5 was unarguable.

It is appropriate, as it seems to me, to start with the language of the measure. I have already set out the text of Article 5. I should also note Recitals 16, 17, 20 and 27 of the Directive:

It is important to notice that Mr Pilgerstorfer points also to other Recitals, not least 6, 8 and 9. He submits that Article 5 does not stipulate that the person suffering the disability must be an employee of the employer in question. That is his first point on the language of the Directive.

However, it seems to me that the obvious and entire focus of Article 5 is upon provisions to be made by an employer for his disabled employees, prospective employees and trainees. That is, I think, powerfully supported in particular by Recital 20 " . . . measures to adapt the workplace to the disability". None of the other recitals relied on by Mr Pilgerstorfer begins, with respect, to suggest any different interpretation. Nor do other materials to which our attention was drawn, including Recommendation 86/379/EEC referred to in Recital 27 to the Directive or the Resolution of 17 June 1999, also referred to there. It is to be noted that these and other materials set out general aims of great social importance, but in my judgment they cannot be read into Article 5 so as to confer upon that provision a meaning which, as it seems to me, it simply cannot bear.

Moreover, once it is postulated that the disabled beneficiary of Article 5 may be a person other than the employee, the Article gives no clue as to who that other person might be. On the face of the Article, it would be an entirely open question who such a person might be. The Article would be, in my judgment, hopelessly uncertain. The Appellant says that a person associated with the employee would qualify, as of course her disabled daughter is associated with her. But the concept of association is of itself vague and open-ended. Mr Mitchell for the EHRC this morning submitted that the disabled person would probably not need to be a member of the employee's family. That seems to me, if anything, to underline the point.

The issue of association, however, brings me to the important case of Coleman v Attridge Law [2008] All ER (EC) 1105. The claimant there was employed as a legal secretary. She gave birth to a disabled son. She was his primary carer. After taking voluntary redundancy she lodged a claim for unfair constructive dismissal, alleging that she had been treated less favourably than other employees because she was the primary carer of a disabled child. This was said to be direct discrimination contrary to Article 2.1 and 2.2(a) of the Directive. The latter provides that:

The employment tribunal in Coleman referred a preliminary issue to the Court of Justice at the European Union asking essentially whether the Directive had to be interpreted as prohibiting direct discrimination only in respect of an employee who was himself disabled or whether the prohibition applied equally to an employee who was not himself disabled but who was treated less favourably by reason of the disability of his child. The CJEU answered the question in favour of the claimant. At paragraph 38 the court indicated that the principle of equal treatment which the direct discrimination provisions were designed to safeguard was not:

However, the court went on to contrast Article 5.

Paragraphs 39 to 42 of the judgment of the court are in these terms:

The contrast is plain. Article 5 is limited so as to require measures only for the assistance of disabled employees or prospective employees of the employer in question. I am afraid I consider that Mr Pilgerstorfer's ingenious attempt to escape the coils of this contrast, despite their elegance, is doomed to failure. The case of Coleman supports the straightforward interpretation of Article 5 which commends itself on the Article's language and which I have already described.

Mr Pilgerstorfer's references to passages in the opinion of the Advocate General, upon which he laid some emphasis this morning, do not advance the case. There is nothing there to dislodge or qualify the plain effect of the judgment. As with some of the Directive's recitals and also certain of the international measures to which I shall refer shortly, some of the Advocate General's reasoning sets out basic, broad and undoubtedly important ideals and principles; but in any attempt to apply materials of that kind in the interpretation of a concrete provision such as Article 5, care needs to be taken to respect the equally important principle of legal certainty.

For completeness I should add that the fact that the disabled person in Coleman was the employee's child and not the employee herself offers in my judgment no read-across to Article 5 upon which the Appellant might rely. In Coleman the claimant was, on her case, herself the victim of positive discrimination. Her child's disability was simply the cause of it. Their exact relationship was in those circumstances not critical to proof of the cause. Here, however, the Appellant has to assert a duty upon the Respondent to act effectively for the benefit of her child. The proximity of the relationship between the Appellant and the disabled person (here her daughter) therefore becomes critical. But Article 5, as I have said, gives no clue as to what degree of proximity might be required. That is, I think, why at paragraph 42 of Coleman the court said that the Article 5 measures:

There are some other points on Article 5. The Appellant relies on Ring [2013] IRLR 571 in which the Court of Justice of the European Union held that the Directive must as far as possible be interpreted in a manner consistent with the United Nations Convention on the Rights of Persons with Disabilities. The Convention was ratified by the EU in decision 2010/48. The EHRC in their written argument have referred to a series of the Convention's provisions in submitting that the court's approach to the Directive should be informed by the rights and obligations which it contains. This morning Mr Pilgerstorfer also referred to the UN Convention and placed emphasis on some of the Recitals and referred also to the Executive Provisions. They include Article 2, which is a definition section.

But none of this, as it seems to me, requires a revision of the interpretation of Article 5 of the Directive. I accept, of course, that EU legislation "must as far as possible be interpreted in a manner consistent with" an international instrument ratified by the EU (see HK Danmark [2013] ICR 851, paragraph 29 to which Mr Pilgerstorfer referred).

However, in my judgment the UN Convention does not require such a revision and in any event Article 5 cannot be read so as to accommodate the Appellant's interpretation. It is important to notice that many of the provisions relied on are cast in very general terms.

The Respondents, for their part, have responded to the argument concerning the UN Convention as it was raised by the EHRC in writing by way of additional paragraphs to their skeleton argument. I will cite only paragraph 63:

Those observations seem to me to be correct. The more general point is that great care needs to be taken in deploying provisions which set out broad and basic principles as determinative tools for the interpretation of a concrete measure such as Article 5 of the Directive.

In my judgment the short and conclusive point is that neither the UN Convention, nor the EU Charter of Fundamental Right or the European Social Charter (which is also relied on) begins to be capable of qualifying what to my mind is the plain and inescapable meaning of Article 5 of the Directive. The provisions of the EU Charter referred to by Mr Pilgerstorfer this morning, Articles 14, 21 and 25, could hardly be more generally expressed.

The case of Commission v Italian Republic C-312/11 with great respect does not assist the Appellant. It refers (see paragraph 58) to the broad meaning of "reasonable accommodation." If anything, I am inclined to think that paragraph 62 of the judgment tends against Mr Pilgerstorfer's argument. That paragraph reads:

I am also inclined -- it is a different point -- to accept the Respondent's submission at paragraph 31 of their skeleton that there is no suggestion on the facts set out in the Appellant's complaint that her daughter will at any time have the capacity for work or that educational or training facilities were sought with a view to employment. The relevant terms of the particulars of complaint are before us and are also set out at paragraph 30 of the Respondent's skeleton. But principally my conclusion rests on the considerations that I have canvassed relating to the meaning of Article 5.

I would wish to acknowledge the elegance and economy of Mr Mitchell's short submissions advanced for the EHRC this morning but they do not, with respect, persuade me of the Appellant's case.

For all these reasons I am against the Appellant on the principal point in the appeal. Nor do I consider there is any proper basis on which this court should refer a question to the Court of Justice under Article 267 of the Treaty on the Functioning of the European Union. For my part I consider that the Article 5 point is clear. I should add that in fact I think it doubtful whether in truth there is room for any argument relating to a reference. That is for another reason. If there is a question as to the correctness of Langstaff J's decision, then it would appear that the appeal should be allowed on the footing that the EAT's use of Rule 3(10) would in that case have been inappropriate. But it is not necessary, I apprehend, to say any more about that.

In the EAT Langstaff J considered that it had not been contended in the Employment Tribunal below that the Equality Act 2010 should be read down so as to accommodate the Appellant's interpretation of Article 5 (see paragraphs 11 to 13 of Langstaff J's judgment). Of course, if my Lords agree with my conclusions as to the substantive meaning of Article 5, no such issue, nor indeed any issue as to the direct effect of the Article, would arise. But I ought to say that, whether or not Langstaff J's approach was right, I entertain considerable doubt that the Appellant's interpretation of Article 5, assuming it to be correct, could be read into the Equality Act given the express and specific provisions of section 20(3) and paragraph 5(1) of Schedule 8 to which I have referred.

There remains the Appellant's argument that, again, if she is right on Article 5, the Article should be held to be directly effective against the Respondent as an emanation of the State. Langstaff J thought not (see paragraphs 28 to 29 of his judgment, which perhaps I may be forgiven for not citing here).

I would put this point very shortly. The Appellant's interpretation of Article 5 requires an open-ended and unspecific approach to the identity of the disabled person in the case. That circumstance has, as I have made clear, informed my conclusion that the Appellant's interpretation is unsustainable. But even if it is correct, the open-ended and unspecific approach remains. That seems to me to be a important feature, and in the result it leads me to the conclusion that Article 5, upon that interpretation, is insufficiently precise to permit its application by way of direct effect. None of this, I should add, is in my judgment contradicted by Pfeiffer [2005] ICR 1307 or Impact v Minister for Agriculture and Food and ors [2008] 2 CMLR 47, to which Mr Pilgerstorfer referred us.

In the result, then, despite Mr Pilgerstorfer's heroic and extremely clear efforts, for my part I would dismiss this appeal for the reasons I have given.

LORD JUSTICE TOMLINSON: I agree.

LORD JUSTICE BRIGGS: I also agree.