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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Whittaker v. Watson (t/a P & M Watson Haulage) & Anor [2002] UKEAT 157_01_0702 (7 February 2002) URL: https://www.bailii.org/uk/cases/UKEAT/2002/157_01_0702.html Cite as: [2002] UKEAT 157_01_0702, [2002] ICR 1244, 67 BMLR 2, (2002) 67 BMLR 2, [2002] UKEAT 157_1_702 |
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At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT)
MR D J JENKINS MBE
MRS J M MATTHIAS
APPELLANT | |
(2) THE DEPARTMENT OF EDUCATION & EMPLOYMENT |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | MS J BROWN (of Counsel) Instructed By: Messrs Rowley Ashworth Solicitors 247 The Broadway Wimbledon London SW19 1SE |
For the First Respondent For the Second Respondent |
NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT MS S MOORE (of Counsel) Instructed By: Office of the Solicitor Department for Works and Pensions Department of Health New Court 48 Carey Street London WC2A 2LS |
MR JUSTICE LINDSAY (PRESIDENT):
"My employer has not made reasonable adjustments to my employment. On 26 June 2000 my employer would not provide me with any work which I could carry out. I was unable to travel excess distance because of my disability. Breach of Disability Discrimination Act 1995 Part II Section 6."
"Just as if any of my drivers were in this predicament, I suggested that he got off home until he felt better."
"By letter of 9 October 2000 the First Respondents' solicitors applied to amend the IT3 by, inter alia, inserting the following paragraph, 'P & M Haulage has, at most, 6 employees and as such falls well within the small business exemption contained at s7 of the Disability Discrimination Act 1995. Part 2 s6 (duty of the employer to make reasonable adjustments) does not therefore apply'. The First Respondents requested a preliminary hearing for the Employment Tribunal to determine whether the small business exemption applied to the First Respondents."
"(i) the Tribunal does not have jurisdiction under the Disability Discrimination Act 1995 to entertain this originating application; and
(b) the originating application is stayed pending an appeal to any court having power under section 4 of the Human Rights Act 1998 to determine whether section 7 of the Disability Discrimination Act 1995 is incompatible with Articles 6 and 14 of the European Convention on Human Rights."
Section 7 of the 1995 Act is headed "Exemption for small businesses" and it provides as follows:
"(1) Nothing in this Part applies in relation to an employer who has fewer than 15 employees.
(2) The Secretary of State may by order amend subsection (1) by substituting a different number (not greater than 20) for the number for the time being specified there.
(3) Before making an order under subsection (2) the Secretary of State shall consult -
(a) the Disability Rights Commission;
(b) such organisations representing the interests of employers as he considers appropriate; and
(c) such organisations representing the interests of disabled persons in employment or seeking employment as he considers appropriate.
(4) The Secretary of State shall, before laying an order under this section before Parliament, publish a summary of the views expressed to him in his consultations."
That number of 15 was brought down from the original 20 on 1 December 1998: see the Disability Discrimination (Exception for Small Employers) Order 1998 SI 1998 / 2618.
"Prima facie, the Employment Tribunal has no jurisdiction to entertain the application."
"My conclusion, therefore, is that there is a reasonable prospect that a designated court would hold that section 7 of the 1995 Act was incompatible with Articles 6 and 14 of the Convention."
The Chairman continued in his paragraph 24:
"The next question is: what do I do with these proceedings? Normally, they would be dismissed because of my finding that the tribunal has no jurisdiction, having regard to the absolute effect of section 7 of the 1996 Act. Ms Brown invites me to stay this application pending an appeal. She intends to appeal first to the Employment Appeal Tribunal and then to the Court of Appeal."
And, after weighing some competing considerations, Mr Sneath said:
"In those circumstances, I accept the argument by analogy with Seymour Smith & Perez and stay this originating application pending the appeals which Ms Brown assures me the applicant intends to pursue."
"(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."
I do not need to read subsection (2), for immediate purposes. That gives rise to the question of whether section 7 can be read to be so compatible.
"4(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.
(3) …
(4) If the court is satisfied –
(a) that the provision is incompatible with a Convention right, and
(b) that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility,
it may make a declaration of that incompatibility."
"(5) In this section 'court' means (a) the House of Lords (b) the Judicial Committee of the Privy Council [(c) and (d) I need not read] (e) in England and Wales or Northern Ireland the High Court or the Court of Appeal."
Section 4(6) makes it clear that a declaration of incompatibility does not, of itself, affect the validity or the continuing operation of the provision in question and it is not even binding on the parties to the proceedings in which it is made.
"In those circumstances, [and that includes a recital of legislation that we have just gone through] the only course of action open to the EAT is to dismiss this appeal and consider whether to grant the Appellant permission to appeal to the Court of Appeal."