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||BAILII case number:  UKEAT 0220_08_3010
||Appeal No. UKEAT/0220/08/SM UKEAT/0511/08
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
||At the Tribunal
||On 5 & 6 October 2009
||Judgment delivered on 30 October 2009
THE HONOURABLE MR JUSTICE BURTON
|1) MID SUSSEX CITIZENS ADVICE BUREAU
2) LIN CHALLIS
Transcript of Proceedings
© Copyright 2009
|For the Appellant
||MR JOHN LOFTHOUSE
MR SPENCER KEEN
Messrs Charles Russell LLP Solicitors
5 Fleet Place
London EC4M 7RD
|For the Respondents
||MR PAUL MICHELL
MR ED WILLIAMS
Messrs Bates, Wells & Braithwaite LLP
2-6 Cannon Street
London EC4M 6YH
DISABILITY DISCRIMINATION: Exclusions/jurisdictions
The Employment Judge did not err in finding that the Appellant, a volunteer worker with the CAB, was not entitled by the DDA to claim disability discrimination. The Government is not in breach of the Framework Directive in this regard, and s4(2)(d) and s68 of the DDA do not fall to be read down or rewritten (by reference to Marleasing or Mangold) so as to extend protection to voluntary workers without a contract. The Judge was also entitled to find that the CAB arrangements were not within s4(1)(a) of the DDA.
THE HONOURABLE MR JUSTICE BURTON
- This appeal is brought by a Claimant who, for the purposes of this appeal, is deemed to be disabled and only to be identified by the letter X, against the decision of Employment Judge Stacey, sitting at the London South Employment Tribunal on a pre-hearing review, in favour of the Respondent, the Mid Sussex Citizens Advice Bureau (CAB), after hearings on 26 September and on 7 November 2007, by a judgment (Judgment 1) sent to the parties on 15 January 2008. In circumstances to which I shall refer there was a further consideration by Judge Stacey, on the basis of written representations by the parties, which led to a second judgment (Judgment 2) sent to the parties on 9 September 2008, and that also is the subject of this appeal. The finding by Judge Stacey, by way of preliminary issue, was that the Tribunal did not have jurisdiction to consider the Claimant's complaints of disability discrimination pursuant to the Disability Discrimination Act 1995 as amended ("the DDA").
- The facts were clearly found by Judge Stacey in her two judgments, and can be briefly summarised:
(i) The Claimant applied on 28 April 2006 to be a volunteer with the Respondent CAB, indicating that she would like to volunteer for 4 to 5 hours per week (paragraph 6 of Judgment 1).
(ii) She was given a volunteer agreement, which she signed on 12 May 2006 and which was described as being "binding in honour only … and not a contract of employment or legally binding" (paragraph 9 of Judgment 1).
(iii) The Claimant, who had a number of academic and practical qualifications in law, undertook a wide range of advice work duties. No attendance records are kept for volunteers, but the Claimant frequently did not attend on the days she was expected, approximately 25-30 per cent of the time, and no objection was ever taken to this or to her changing the days she came in (paragraphs 6 and 15-16 of Judgment 1).
(iv) It is not automatic that such or any volunteering would lead on to a paid job or employment at the CAB. Volunteers are not given preferential treatment in applying for paid jobs with the Bureau, and all paid posts are advertised externally, and an open recruitment exercise adopted: nor is it a requirement of appointment to a paid post within the Bureau that a candidate should have any background or training with the CAB service (paragraph 12 of Judgment 2).
- In circumstances which did not arise for adjudication at the preliminary issue stage, the Claimant was asked to cease to attend as a volunteer: hence her claim for disability discrimination.
- Three contentions formed the basis of her appeal to this Tribunal, and Judge Serota QC allowed two of them through to a full hearing, after an oral application under Rule 3(10), by Order sealed on 20 May 2008. The first of those related to a case by reference to ss14C and 14D of the DDA, which is no longer pursued by Counsel who have ably argued the matter on her behalf before me, John Lofthouse and Spencer Keen. The second ground is by reference to s4(1)(a) of the DDA ("the s4(1)(a) point"): while allowing this ground through to a full hearing, Judge Serota made a Burns/Barke Order, on the basis that he was persuaded that Judge Stacey had not dealt with the point in Judgment 1, and requested her to do so, which, by way of review of her judgment, she duly did, in Judgment 2. As to the third ground, this was in fact the case which has become before me the principal matter of argument, namely a case that, by reference to Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation ("the Framework Directive"), s4(2) of the DDA should be so construed as to allow the Claimant's claim to proceed. Judge Serota did not allow this point through on Rule 3(10), but, on appeal by the Claimant to the Court of Appeal, the Court of Appeal ordered, by a judgment on 10 March 2009, that this ground, which I shall call the "Framework Directive point" should also go through to a full hearing at this Tribunal, which has now taken place.
The Framework Directive Point
- S4(2)(d) reads in material part as follows:
"It is unlawful for an employer to discriminate against a disabled person whom he employs –
(d) by dismissing him, or subjecting him to any other detriment."
- Employer and employs are defined by reference to the definition of "employment", which is contained in s68 of the DDA:
""Employment" means, subject to any prescribed provision, employment under a contract of service or of apprenticeship or a contract personally to do any work, and related expressions are to be construed accordingly."
- The Appellant was plainly a volunteer. Judge Stacey found that there was no legally binding contract between the Appellant and the CAB (paragraphs 36-37 of Judgment 1) and particularly (paragraph 38 of Judgment 1) that there was no obligation on the Appellant to provide services. Applying s68 to s4(2), Judge Stacey found that there was no contract and so the Appellant was not in employment. The absence of such a contract is not challenged by Mr Lofthouse before me. In paragraph 39 of Judgment 1, Judge Stacey said she had considered the Framework Directive but concluded that it provided no assistance in this case, and further that the volunteer arrangement fell outside its provisions in any event. Mr Lofthouse contends before me that the volunteer arrangements between the Appellant and the Respondent do fall within the ambit of the Framework Directive, that ss4(2) and 68 of the DDA are non-compliant with European law, and that by one jurisprudential means or another, to which I shall refer, the Appellant should be and is entitled to bring a disability discrimination claim within s4(2) as reinterpreted.
The s4(1)(a) Point
- This subsection reads in material part as follows:
"(1) It is unlawful for an employer to discriminate against a disabled person –
(a) in the arrangements which he makes for the purpose of determining to whom he should offer employment".
- The Appellant's contention, which became the subject matter of Judgment 2 in the circumstances I have described in paragraph 4 above, was that the volunteering arrangements under which the Appellant was, until they ceased, providing her voluntary services to the CAB, were and should have been found to be "for the purpose of determining to whom [the CAB] should offer employment". I have referred at paragraph 2(iv) above to the Employment Judge's findings of fact in this regard. She accepted (paragraph 13 of Judgment 2) that "in practice it is likely that the experience of having been a volunteer is a very great advantage and is clearly relevant in obtaining paid positions at the CAB and indeed elsewhere", but (paragraph 18 of Judgment 2):
"… when one poses the relevant question - are the volunteering arrangements for the purposes of determining to whom employment should be offered? - the answer is "no": the engaging of volunteers is to provide volunteer advice and other work to support the CAB's charitable aims. It is a by-product and not a purpose, that in engaging and training volunteers the CAB develops a cadre of individuals who are likely to develop skills suitable for paid employment which can lead to paid work at the CAB. But that is not the sole, dominant or indeed any part of the actual purpose of the arrangement."
- By way of subsidiary case, argued before me by Mr Keen, the Claimant seeks to challenge that conclusion.
- There is a good deal of important common ground between Mr Lofthouse and Mr Keen and Mr Paul Michell and Mr Ed Williams of Counsel, who have represented the Respondent before me, with which it appears to me to be sensible that I should immediately deal.
- First. This is not a case in which the position of all voluntary workers falls to be determined. Some are already protected. It is common ground that voluntary workers who have a contract with those to whom they supply their services, by which they contract personally to do any work, are protected as a result of the wide definition of employment applied to s4 of the DDA by s68. The finding in this case, which, as stated in paragraph 7 above, is not challenged, is that this Claimant did not have a legally enforceable such contract, and in particular did not owe sufficient or any obligations to the Respondent in relation to the provision of her services to create any mutuality of obligation.
- Second. Any construction or interpretation of the DDA upon which I resolve, as a result of the argument in this case, must also have a similar knock-on effect in relation to all the equivalent sections in other anti-discrimination legislation: so far as s68 of the DDA is concerned that would mean, for example, the same interpretation, and/or the same disapplication, if such be the outcome, of the interpretation clauses e.g. in s78 of the Race Relations Act 1976 and s82 of the Sex Discrimination 1975. Mr Lofthouse makes the same assertion as to the effect of the two parallel Directives (Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, and Directive 2006/54/EC of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation), as he does in relation to the Framework Directive.
- Third. It is not in issue, by reference to agreed materials in the bundles - for example, "Improving the Life Chances of Disabled People" (January 2005) issued by the Prime Minister's Strategy Unit, "Recruiting, Retaining and Developing Disabled Volunteers: Guidance for Volunteer Opportunity Providers" (April 2007) published by the Disability Rights Commission ("DRC") and "Volunteering for All?" published recently by the Institute for Volunteering Research - that it is public policy that volunteering by and for the disabled should be encouraged.
- Fourth. The volunteering sector is a substantial one, as evidenced by statistics from the National Council for Voluntary Organisations. In 2007/08 some 73 per cent of adults in England took part in a voluntary activity, 64 per cent of them undertook informal volunteering, and 43 per cent undertook formal volunteering, 27 per cent of people giving their time at least once a month, with an estimated total of 1.75 billion volunteer hours. This shows the importance of the voluntary area, but also, as appears from the final Report of the Disability Rights Task Force (December 1999) "From Exclusion to Inclusion", it emphasises the difficulty of extending anti-discrimination legislation into the area. The Report at paragraph 38 reported its awareness of "the diversity of organisations that engage volunteers, from small local community groups with few resources to large national charities. Volunteers also undertake a wide range of activities from one-off charity collections for a few hours to regular part-time work. We recognised that organisations may have concerns about being held legally responsible for discrimination by one volunteer towards a disabled volunteer, especially given the lack of control over who is engaged as a volunteer and to some extent what they do and the absence of available sanctions. Similarly organisations may feel that the burden of having to understand the law in this area and make reasonable adjustments, for a volunteer working just a few hours, is too onerous."
- Fifth. Neither the Framework Directive, nor indeed the other two Council Directives to which I have referred, have direct (or 'vertical') effect, i.e. are directly enforceable where the respondent is, as here, not the Government or an emanation of Government; and such is likely to be the case in relation to all voluntary organisations.
- Sixth. In relation to the definition of "worker", the European Court of Justice in Allonby v Accrington & Rossendale College and Others  ICR 1328 emphasised that (with reference to Article 141 EC, relating to the principle of equality for men and women) "the term worker … cannot be defined by reference to the legislation of the Member States but has a Community meaning. Moreover, it cannot be interpreted restrictively". However, there is a consistent repetition in the European Court authorities of a definition of the Community meaning of 'worker'. In paragraph 32 of its judgment in Kurz v Land Baden-Württemberg  ECR I-10691 the European Court said that the concept of worker "must be defined in accordance with objective criteria which distinguish an employment relationship by reference to the rights and duties of the persons concerned. In order to be treated as a worker, a person must pursue an activity which is genuine and effective, to the exclusion of activities on such a small scale to be regarded as purely marginal and ancillary. The essential feature of an employment relationship is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration." A whole line of authorities is then referred to, commencing with Lawrie-Blum v Land Baden-Württemberg  ICR 483, particularly at paragraphs 16 and 17. The same principle and the same, if not longer, line of previous European Court authorities is cited in paragraph 50 of the opinion of the Advocate General in Wippel v Peek and Cloppenburg GmbH & Co KG  ICR 1604, again referring to the "assumption of reciprocal rights and obligations under an employment relationship" and to the receipt of remuneration.
- Seventh. Until now it has been consistently assumed and/or concluded that voluntary workers, unless they have contracts, are not protected by the UK anti-discrimination laws:
(i) Amongst the agreed materials is the Disability Rights Task Force Report to which I have already referred, which, at paragraph 37, recorded that "most volunteers are not employees and are therefore not covered by the DDA employment provisions". In the Response by the DRC to a Work and Pensions Select Committee Inquiry in 2002, the DRC recorded, at paragraph 42, that the then anticipated compliance by the UK Government with the Framework Directive would "leave some kinds of work experience unprotected, including more informal kinds of volunteering".
(ii) So far as Parliament is concerned, the implementation of the Framework Directive led to Regulations by way of amendment to the DDA in 2003, which included provisions in relation to access to occupation (e.g. ss7A-D (barristers etc) and 14A, B (qualifications bodies) and extensions to certain office-holders (with minor exceptions, only those who are remunerated) by ss4C-F. There was no extension into the volunteering sector: of course those voluntary workers with contracts within s68 remained covered. In a Report by the Joint Committee (of the two Houses of Parliament) on a Draft Disability Discrimination Bill in 2004, it was recorded, in paragraph 352, that volunteers are not currently protected from discrimination, nor entitled to reasonable adjustments under the DDA.
(iii) So far as decisions of the Court are concerned, because the volunteer workers in the relevant cases were not found to be engaged under a relevant contract, they have been found, in a number of EAT decisions, not to be protected by the relevant anti-discrimination legislation: see South East Sheffield CAB v Grayson  IRLR 35 and Bruce v Dial House Chester  UKEAT/0555/04/SM (13 September 2004), both DDA cases. At the Court of Appeal level, there have been decisions, again based upon the absence of a qualifying contract: The Mirror Group Newspapers Ltd v Gunning  ICR 145 and Patterson v Legal Services Commission  ICR 312, but in particular Mingeley v Pennock  ICR 727, a racial discrimination case, where again the application of the relevant interpretation section (s78 in the 1976 Act, referred to in paragraph 13 above) was in issue. Counsel in Mingeley invited the Court of Appeal to construe s78 in the light of the provisions of the then recent Directives. At paragraphs 12 and 13 of his judgment, Maurice Kay LJ, instead of being persuaded by the contention that there had been no amendment of s78 because it now fell to be construed so as to allow exclusion of anti-discrimination protection, considered this an "unsustainable argument", and rather concluded that the statutory provisions as previously construed, given that they had not been amended, should continue to be so construed. A similar view was reached by Lord Hoffmann in Percy v Church of Scotland Board of National Mission  ICR 134. The majority of the House construed Miss Percy's relationship with the Church of Scotland as a contract falling within s82 of the Sex Discrimination Act. Lord Hoffmann, in dissenting from the rest of the House in relation to whether there was a contract, referred at paragraph 73 of his speech to the decision of the European Court in Lawrie-Blum, and to the definition of a worker by reference to rights and duties and remuneration, to which I have referred in paragraph 17 above. This informed his view that Miss Percy was not a worker and had no contract. He added that the amendment of the UK legislation (subsequent to the events of the Percy case) so as to extend protection to certain office-holders might have protected Miss Percy if it had been in place at the time. None of their Lordships considered an argument that the Directive(s) rendered it unnecessary for there to be a contract.
- I set out the above seventh matter of common ground not so as to found any conclusion that, as a result of the doctrine of stare decisis, Mr Lofthouse is necessarily prevented from arguing his point: he contests this, indicating that he is relying on arguments, in particular what I shall call the Mangold argument (which I shall describe), which have not been adjudicated before. That may or may not allow him to assert that, because he is raising a different argument, one based upon European law, he is, despite the law of precedent, able to achieve a different result. But on any basis, the short resumé above emphasises the difficulty that he faces.
The Framework Directive
- The following recitals and articles of the Framework Directive are material. I set out first Recitals (4), (6), (9), (12) and (27), and then Articles 1, 3(1) and (5).
(4) The right of all persons to equality before the law and protection against discrimination constitutes a universal right recognised by the Universal Declaration of Human Rights, the United Nations Convention on the Elimination of All Forms of Discrimination against Women, United Nations Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights and by the European Convention for the Protection of Human Rights and Fundamental Freedoms, to which all Member States are signatories. Convention No 111 of the International Labour Organisation (ILO) prohibits discrimination in the field of employment and occupation
(6) The Community Charter of the Fundamental Social Rights of Workers recognises the importance of combating every form of discrimination, including the need to take appropriate action for the social and economic integration of elderly and disabled people.
(9) Employment and occupation are key elements in guaranteeing equal opportunities for all and contribute strongly to the full participation of citizens in economic, cultural and social life and to realising their potential.
(12) To this end, any direct or indirect discrimination based on religion or belief, disability, age or sexual orientation as regards the areas covered by this Directive should be prohibited throughout the Community. This prohibition of discrimination should also apply to nationals of third countries but does not cover differences of treatment based on nationality and is without prejudice to provisions governing the entry and residence of third-country nationals and their access to employment and occupation.
(27) In its Recommendation 86/379/EEC of 24 July 1986 on the employment of disabled people in the Community, the Council established a guideline framework setting out examples of positive action to promote the employment and training of disabled people, and in its Resolution of 17 June 1999 on equal employment opportunities for people with disabilities, affirmed the importance of giving specific attention inter alia to recruitment, retention, training and lifelong learning with regard to disabled persons.
The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.
1. Within the limits of the areas of competence conferred on the Community, this Directive shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to:
(a) conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion;
(b) access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience;
(c) employment and working conditions, including dismissals and pay;
(d) membership of, and involvement in, an organisation of workers or employers, or any organisation whose members carry on a particular profession, including the benefits provided for by such organisations.
Reasonable accommodation for disabled persons
In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer. This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned."
- As will be seen, Mr Lofthouse rests his contentions largely, if not wholly, on the references in the Directive to "occupation". He submits that this means that the ambit of the Directive extends beyond someone in employment, or self-employment, to someone who has an occupation. He does not suggest that all voluntary workers have, or are engaged in, an occupation, and in the course of our discussion, I suggested that he would need to formulate a definition of 'qualifying voluntary workers', which, as will be seen, he did, resting his definition on what was said in R (Payir) v Secretary of State for the Home Department  ICR 188, by Stanley Burnton J, referring to European Court decisions. That case related to whether a Turkish au pair in the United Kingdom was a worker, and he concluded (at paragraph 23 of his judgment) that there was a genuine employment relationship between an au pair and the family for whom she works: her work could not be regarded as "purely marginal and ancillary". By reference to that, Mr Lofthouse formulated, in discussion with me, a definition which articulated the case made out in his skeleton argument, defining occupation as "the carrying out of a real and genuine activity, which is more than marginal in its impact upon the person or entity for whom such activity is carried out and which is not carried out for remuneration or under any contract". The problems appeared, and appear, to me to be at least twofold:
(i) It is apparent from paragraph 50 of his skeleton that he draws this basic definition of occupation from the words of Stanley Burnton J, which are expressly taken from the European Court judgments, to which I have referred in paragraph 17 above. Stanley Burnton J, in paragraph 17 of his judgment, recites at length from Kurz, and in particular the passage I have cited above. Steymann v Staatssecretaris van Justitie  ECR 6159, to which Stanley Burnton J then refers, and from which he quotes, and from which it appears he most directly takes the words "the work must be genuine and effective and not such as to be regarded as purely marginal and ancillary", specifically draws that quotation from the earlier case of Levin v Staatsecretaris van Justitie  ECR 1035, one of the 'worker' cases listed by the Advocate General in Wippel, again referred to above. This only emphasises that Payir is a "worker" case and not an occupation case. Indeed, neither party has been able to adduce any European authority on the meaning of occupation, and I do not conclude that there is any assistance on the European meaning of the word occupation, insofar as it is material to my decision in this case, from the two 19th century English cases, and one early 20th century Canadian case, referred to in Mr Lofthouse's skeleton, although not in the event even produced in the bundle of authorities put before me.
(ii) Even assuming that the question of an activity being "more than marginal in its impact" were relevant, I would find that very difficult indeed to use as any kind of test by which to decide if a voluntary worker is a 'qualifying worker'. What, I asked Mr Lofthouse, of a surveyor giving voluntarily of his time for two hours a year to his local church to check that the church bell was safe in its moorings? Albeit in terms of time no more than marginal, would that not be, in its potential impact on the church, significant? Mr Lofthouse's answer was simply that, in every case, the answer would have to be fact sensitive.
- Before I consider Mr Lofthouse's argument that the Framework Directive does require protection by UK legislation for (some) voluntary workers, I must address Mr Lofthouse's submission as to how that is to be achieved, so as to assert that, without amendment of the UK legislation, protection can be given to the Claimant as a voluntary worker without a contract. There are various ways in which steps can be taken - leaving aside the Francovich principle (ECR I-05357), not relevant here - in the event of non-compliance by a Government with its obligations under the Directive. The first two do not arise in this case:
(i) Enforcement by the European Commission or, derivatively, by the Equal Opportunities Commission ("EOC") or its successor, the Equality and Human Rights Commission ("EHRC") against the Government. This has not occurred, and that in itself is of some significance, a matter to which I return below.
(ii) A directive can, of course, be directly enforced by cause of action if it has direct, or vertical, effect. As set out in paragraph 16 above, it is common ground that the Framework Directive is not so directly enforceable in this case at the instance of the Appellant. The uniqueness of direct effect is regularly emphasised by the European Court as a "cornerstone" of European Court jurisprudence (see Palacios de la Villa v Cortefiel Servicios SA  AER (EC) 249 in the Opinion of the Advocate General at paragraphs 106 to 110), and the importance of not giving 'horizontal' effect to directives is further emphasised in the Opinion of the Advocate General in Marshall v Southampton and South West Hampshire AHA  ICR 335 at 346E-G.
- The first of the routes which Mr Lofthouse asserts to be available to him in implementing, as he asserts it, the effect, otherwise uncomplied with, of the Framework Directive, is by resort to the purposive construction of national legislation, so as to accord with European law, encouraged by such decisions of the European Court as Marleasing SA v La Commercial Internacional de Alimentacion SA  ECR I-4135 ("the Marleasing approach"). This would, if available, lead to the Appellant's being able to rely on the relevant provisions of the DDA, and (as set out in paragraph 13 above) necessarily all the similar provisions of the other anti-discrimination statutes as adjusted, which, while possibly creating problems with the doctrine of stare decisis, would at least not have any jurisdictional problems of justiciability in an employment tribunal. The Marleasing approach was, of course, adopted in such decisions as Litster v Forth Dry Dock & Engineering Co Ltd  1 AC 546 and Coleman v Attridge Law  ICR 1128, so as to reinterpret relevant UK statutory provisions. Two such methods were suggested by Mr Lofthouse, although he abandoned the second of them in the course of argument.
- His first, and continued, submission was that the Court should read into the wording of the definition section, s68 (and equivalent definition sections in the other statutes), the word occupation, so as to read ""employment" means … occupation or employment under a contract …". Occupation would then carry the meaning as per his definition suggested in paragraph 21 above. Employer and employs in s4(2) would then fall to be construed accordingly, so as to cover those (qualifying voluntary workers) in occupation as so defined.
- His alternative submission was that the word contract in the same definition section in s68 etc should be more widely defined, such as to include an arrangement that was short of contract. This would certainly create problems with the law of precedent vis-à-vis the House of Lords (Kelly v Northern Ireland Housing Executive  ICR 828) and the Court of Appeal (Mirror Group Newspapers (supra), Edmonds v Lawson  QB 501, Patterson ...supra) and, particularly – for the reasons discussed at paragraph 18(iii) above – Mingeley), but it would also have to surmount the problem that the word contract, which is used twice within the same statutory provision ("employment under a contract of service … or a contract personally to do any work") would have to be construed to have a different meaning on each occasion. As I have indicated, this second method was not pursued by Mr Lofthouse.
- The second, and effectively, by the end of his submissions, the only route upon which Mr Lofthouse relied, was what can be called the Mangold approach, by reference to the decision of the European Court in Mangold v Helm  ECR I-9981. This approach is said to enable, indeed require, a national court, even in a case where a directive does not have direct effect, to achieve, in the event of what would otherwise be non-compliance by the national legislature, directly the impact of the uncomplied-with directive. The decision in Mangold itself is not sufficient for Mr Lofthouse's purpose, both because its effect is unclear (it does not appear that the Mangold approach has ever in fact been put into effect by any European Court decision), but not least because of the considerable criticism of what is said to arise out of Mangold, to which I will refer. Mr Lofthouse has recognised that the apparent width of it must be limited in accordance with the words of the Advocate General in Bartsch v Bosch und Siemens Hausgeräte (BSH) Altersfürsorge GmbH  AER (EC) 113 ("Bartsch"). In Mangold itself there was addressed a clause in German law which restricted certain rights of protection for workers on age grounds and (as it happens, at a time when the period for transposition for the Framework Directive into national law had not yet expired) the European Court set aside that exempting provision. The conclusion of the European Court (paragraph 78) was:
"It is the responsibility of the national court to guarantee the full effectiveness of the general principle of non-discrimination in respect of age, setting aside any provision of national law which may conflict with Community law, even where the period prescribed for transposition of that directive has not yet expired."
- There has been considerable criticism of this principle, both as too broad and as offending against the cornerstone of the distinction between vertical and horizontal effect. At paragraph 149 of the speech of Baroness Hale in Percy v Church of Scotland, resort to what in effect would be the Mangold approach (although she did not refer to Mangold in terms) was said by her to be unavailable because, in that case, the Church of Scotland not being an emanation of the state, there was no direct, or vertical, effect. The criticism of the Mangold approach, and the deprecation of its adoption, is on the grounds both of its ambiguity and uncertainty, and the undermining of the principle of direct effect: see the Opinions of the Advocates General in Adeneler v ELOG  AER (EC) 82 (as reflected by Elias P in his EAT judgment in Paterson v Commissioner of Police of the Metropolis  IRLR 763), in Palacios at paragraphs 105-140 and in Kücükdeveci v Swedex GmbH & Co KG C-555/07 (7 July 2009).
- In the light of that criticism, which is also reflected in the Opinion of Advocate General Sharpston in Bartsch (e.g. paragraphs 28-41), Mr Lofthouse adopts and pursues the more limited Mangold approach reflected in paragraphs 87-88 of the Bartsch Opinion (although in the event, because the facts of the case fell to be distinguished, even such limited Mangold approach was not put into effect by the Court). The Advocate General's approach was as follows:
"In those circumstances, I consider that the general principle of equality, and specifically equal treatment irrespective of age as identified by the Court in Mangold's case cannot be applied horizontally. In so saying, I accept that such a principle can apply (both vertically and horizontally) to the extent that it does so within a specific Community law framework.
88. However, where there is no such framework, as in the present case, the general principle of equality, and specifically equal treatment irrespective of age, has nothing on which to bite. It therefore cannot be applied (either vertically or horizontally) unless and until the Community legislator has enacted the necessary detailed measures under Article 13 EC and any transposition period has expired. Once that has happened, the general principle will … be used to interpret the implementing legislation rather than operating autonomously."
- Consequently, Mr Lofthouse's submission is that, in accordance with the modified Mangold approach, since the relevant equality principle has in this case been, on his case, implemented by the Framework Directive, so that there is something on which to bite, the national court must accordingly set aside, or strike down, s68. That done, this leaves the word employer and employs in s4(2) undefined, and to be construed in accordance with the general principle of equality as enshrined in the Framework Directive, and thus to include provision for what Mr Lofthouse submits to be the effect of the Framework Directive on what he defines as occupation.
Does the Framework Directive require protection for (some) voluntary workers?
- This question requires to be answered in the affirmative before any question of adopting either Mr Lofthouse's Marleasing or Mangold approach arises. Since 2003, the UK has, as set out in paragraph 18(ii) above, implemented what it sees as its obligations under the Directive. Protection has been given for some office-holders, but, by reference to s4C (with the exception of certain Government appointed, or recommended, office-holders (s4C(3)(b) and (c)) only where "(a) the office or post is one to which persons are appointed to discharge functions personally under the direction of another person, and in respect of which they are entitled to remuneration".
- I set out the provisions of the Framework Directive in paragraph 20 above. Mr Lofthouse submits that, by Article 3(1), the Directive is to apply to all persons in relation to all issues arising out of employment, self-employment and occupation (and that the requirement to take appropriate measures under Article 5 similarly so applies). Mr Michell submits that, by reference to the difference between Article 3(1)(a) and (c), the protection only extends more widely in relation to access to employment, in respect of which the provisions are very broad, because, in order to access employment, it may be necessary for an employee to obtain an occupation, which would include a professional qualification. Hence, he submits, the provisions incorporated by the UK Government, as a consequence of the Framework Directive, referred to in paragraph 18(ii) above, relating to access to the legal profession by pupillages etc (ss7A-D) and qualifications bodies (ss14A-B), to add to the provisions in respect of trade organisations (ss13, 14). Conditions for access are thus (by Article 3(1)(a)) to be controlled "whatever the branch of activity and at all levels of the professional hierarchy": the same provision can be found in the other Directives. Mr Lofthouse submits that there can be no justification for a different approach in relation to access to employment etc (Article 3(1)(a)) than as relates to working conditions (Article 3(1)(c)) and that occupation in (a) means occupation as defined by him above, by reference to the European cases cited in Payir, and is subsumed within employment in (c). He relies upon the fact that the words and occupation appear in recitals (4), (9) and (12) set out above, and in Article 1.
- Mr Michell puts forward a persuasive explanation for the appearance of occupation in the Recitals:
(i) Recital (4) expressly derives from Convention No 111 of the ILO. Article 1(3) of that Convention states:
"For the purpose of this Convention the terms employment and occupation include access to vocational training, access to employment and to particular occupations, and terms and conditions of employment."
There is nothing therefore to oust, and everything to support, the conclusion that occupation is included in order to emphasise qualifications and professional requirements required for access to employment.
(ii) Recital (6) expressly refers to the Community Charter of the Fundamental Social Rights of Workers adopted by the heads of Government of member states of the Community (except the UK) in December 1989 (the "Social Charter"). Under the heading "Freedom of Movement" it is provided by paragraph 2:
"The right to freedom of movement shall enable any worker to engage in any occupation or profession in the Community in accordance with the principles of equal treatment as regards access to employment, working conditions and social protection in the host country."
Under the heading "Employment and Remuneration" it is then provided:
"4. Every individual shall be free to choose and engage in an occupation according to the regulations governing each occupation.
5. All employment shall be fairly remunerated."
It is apparent that the provisions of the Charter relate to the rights of workers, both as regards access to employment in any occupation and remuneration once so engaged.
(iii) Recital (12) plainly on its face relates to "access to employment and occupation".
(iv) In Recital (27) there is no reference to occupation such as to oust what would otherwise be the ordinary understanding of paid employment. Mr Michell also points out that there is no reference to occupation in the provision in Article 5 relating to reasonable accommodation for disabled persons, which is the principle which underlies the provisions for the duty of employers to make adjustments in national legislation: and that so far as disabled persons are concerned the making of such reasonable adjustment is the most significant aspect of working conditions in Article 3(1)(c).
- I am entirely satisfied that no obligation upon a national government to implement provisions for those voluntary workers not protected by the provision for a contract in s68 (etc) arises out of the Framework Directive:
(i) No authority in European law is cited by Mr Lofthouse, nor any jurisprudence suggesting that occupation is intended to mean unpaid employment, as opposed to being a reference to a profession or qualification or area of work, access to which may be necessary for employment and continued employment (including promotion). Indeed, if anything, the contrary is suggested by the fact that neither the European Commission nor the EOC/EHRC has suggested non-compliance by the UK Government with its obligations under the Directive (see paragraph 22(i) above). Included in the agreed material is a list dated 31 January 2008 of Member States to whom such a complaint was to be sent in relation to alleged non-compliance with the Framework Directive. The UK is not on the list. Nor has the EOC so alleged when, in its action against the Secretary of State for Trade and Industry (Equal Opportunities Commission v Secretary of State for Trade and Industry  IRLR 327) it alleged non-compliance with the equivalent Directive in a number of respects in relation to the Sex Discrimination Act, but not suggesting that the equivalent definition section, s82, failed to comply in not extending protection to voluntary workers.
(ii) I have already referred in paragraph 17 above to the striking factor that the European definition of worker consistently includes the existence of mutual rights and duties (not applicable where there is no contract) and remuneration (not applicable in relation to voluntary workers). This filters through into the Social Charter reflected in Recital (6) above, and even to the extent that materially the only office-holders protected as a result of UK implementation of the Directive are those who receive remuneration. Both the examples of "working conditions" referred to in Article 3(1)(c) of the Directive are inapt to a voluntary worker.
(iii) An English judge, when addressing the question of statutory construction of a European directive, must always do so with considerable diffidence. Nevertheless it must be said that there is no express provision anywhere in the Directive of what would be for the first time the extension of protection to unpaid voluntary workers. In particular, I must consider the specific submission made by Mr Lofthouse that occupation is intended to mean something different from employment in Article 3(1)(a). If that is right, it is difficult to see why it becomes subsumed within employment in Article 3(1)(c) and Article 5. I would prefer to conclude, with Mr Michell, that occupation expressly only features in the context of access to employment within 3(1)(a).
- In those circumstances I am not persuaded by Mr Lofthouse that there has been non-compliance by the UK Government with the Framework Directive, or that such alleged non-compliance should be used so as to rewrite or inform the anti-discrimination legislation by either of his two suggested routes.
The Marleasing/Mangold Approaches
- Even if, contrary to my conclusion, there were such non-compliance, I am not satisfied that it would be correct or appropriate to embark on either of Mr Lofthouse's suggested routes. As for Marleasing, the course of rewriting UK statutes, certainly so as to add in the words suggested here - "or occupation" - should only be embarked on in clear circumstances. Similar warnings were given in the House of Lords in relation to the Human Rights Act in Ghaidan v Godin-Mendoza  2 AC 557 at paragraphs 33, 49 and 121. What would purport to be a definition section would be left wholly unclear, as a result of the addition of undefined words. Even in a case where non-compliance by the national government was clearly found (the Equal Opportunities Commission case) Counsel for the EOC urged (paragraph 24), and I found, that application of the Marleasing principle would be neither effective nor sensible "because of the need for clarity and certainty, and comprehensibility by employees and employers alike" (paragraph 61).
- Adoption of Mr Lofthouse's recommended route of the modified Mangold approach would mean the striking down of the definition section in s68 in its entirety, as being an exclusory definition inconsistent with the provisions and requirements of the Framework Directive. This would leave s4 of the DDA (and the equivalent sections in the other legislation) to stand, with employer/employee/employment undefined in the statute. Those words would then fall to be construed by the courts, and employment would then be redefined by the courts by reference to the asserted obligations of the national courts under the Framework Directive to include occupation i.e. by giving protection for some voluntary workers - 'qualifying voluntary workers' - no doubt by adoption of Mr Lofthouse's preferred definition, set out in paragraph 21 above.
- I have already been critical of such suggested definition. It arises by reference to a European definition of a worker, which is rooted in rights and duties and in remuneration, and it leaves wholly dependent upon undefined factual circumstances – or upon the recognition of an appropriate 'elephant' - what is to amount to an "activity which is more than marginal in its impact upon the person or entity for whom such activity is carried out". There is however a further concern, given that the existing careful definition of employment in s68 is to be set aside and removed. There would be a real risk, as it was put in the course of argument of 'the baby being lost with the bath water', for, at the moment, there is the provision which would allow protection for many voluntary workers, namely that they can show "a contract personally to do any work". As a result, Mr Lofthouse's definition would, it seems to me, have to lose at least its last four words (i.e. the words "or under any contract": see paragraph 21 above) and possibly all the words after for whom such activity is carried out, in order to restore protection for those who presently have it. This would result in an even wider and more ambiguous definition of the category of persons.
- I am entirely satisfied that, even if the Framework Directive did require coverage for some or all of those giving time in the voluntary sector, it is neither sensible nor possible to seek to achieve whatever effect was intended by tinkering with the existing legislation. The difficulty of legislating for the voluntary sector has already been referred to in the passage from the Report of the Disability Rights Task Force, cited in paragraph 15 above. Mr Michell submits as follows, in paragraph 100 of his skeleton:
"Moreover, the exercise of the interpretative obligation cannot require courts to make decisions for which they are not equipped, or which give rise to important practical repercussions which the court is not equipped to evaluate. Vodafone 2 v Commissioners for HM Revenue & Customs  EWCA Civ 446, para 38. The practical repercussions of introducing new protection for some/all volunteers in some/all fields of discrimination law will be significant. This is particularly so as regards disability, given the duty (which would retrospectively apply?) to make reasonable adjustments."
- I agree, and I am satisfied that any change must be made by legislation, which would need to define precisely which voluntary workers qualify, and why.
- Consequently, although I have dealt with Mr Lofthouse's arguments at some considerable length, I do not consider that there is any substance in his primary case.
- If Mr Lofthouse's primary case had succeeded, there would have been no need for this argument, and, because it has failed, this second argument must now be self-standing and cannot be improved by any purposive interpretation of the meaning of the word employment in the subsection, which I have set out in paragraph 8 above.
- The case is simply that the finding by Judge Stacey that the arrangements for voluntary workers at the CAB were not made for the purpose of determining to whom [the CAB] should offer employment" was wrong in law and/or perverse. I have referred to Judge Stacey's findings in paragraph 2(iv) above, although she referred in paragraph 14 of Judgment 2 to the Appellant's evidence that "she would estimate 80% of paid specialist advisers/caseworkers at the CAB have worked in unpaid roles until funding is secured". There was plainly also the evidence of Miss Challis referred to in paragraph 12 of Judgment 2, by reference to paragraph 9 of her witness statement, which is in the papers, and which, Judge Stacey records, was not shaken in cross-examination that:
"It is not the case that volunteers characteristically progress on to paid employment within the CAB service. Volunteers are not given preferential treatment in applying for paid posts with the Bureau."
- It is thus plainly not possible to argue perversity. In any event, the reality is that what was being addressed was the purpose of the arrangements, not their possible consequence, and there seems plainly a difference between the purpose and the effect: and whereas the definition of harassment in s3B of the DDA, includes unwanted conduct which has either the purpose or the effect there proscribed, in relation to the making of arrangements it is only their purpose which is within the ambit of s4(1)(a). It is clear that Judge Stacey did not only consider the employer's subjective purpose: a court may be driven to reject (but she did not) what an employer says about the purpose of arrangements. But it is worth bearing in mind that the consequence of concluding that arrangements have the purpose specified in s4(1)(a) is to subject those arrangements to all the consequences of the legislation, including the obligation to make reasonable adjustments, and whereas there is an express saving in s4A(3) for an employer in relation to a disabled person if the "employer does not know and could not reasonably be expected to know" that (inter alia) a person has a disability, there is no similar saving if the employer does not know, and could not reasonably have been expected to know, that the arrangements he is making, which, so far as he believes and intends, are not for the purpose of later determining to whom he should offer employment, can retrospectively be deemed to have been so.
- In my judgment, the Employment Judge was entitled to have been encouraged in her conclusions by paragraph 7.6 of the DRC Code of Practice on Employment and Occupation 2004, which, as she said, when quoting it in paragraph 6 of Judgment 2, is a statutory code to which tribunals must have regard where relevant (s53A of the DDA, now replaced by ss 15(4) and 42(3) of the Equality Act 2006). Paragraph 7.6 reads as follows, addressing arrangements falling within s4(1)(a):
"the meaning of 'arrangements' … is wide. Such arrangements are not confined to those which an employer makes in deciding who should be offered a specific job, but also include arrangements for deciding who should be offered employment more generally. Thus, for example, participation in a pre-employment training programme could be 'an arrangement' if its completion is a necessary step along the road to gaining an offer of employment."
- In this case there was no question, on the facts found by the Employment Judge, of the arrangements being a "necessary step". In my judgment, the conclusion to which the Employment Judge came in paragraph 18 of Judgment 2, recited in paragraph 9 above, is unimpeachable, both in fact and in law.
- In those circumstances the appeal is dismissed. I am asked by Mr Lofthouse for the Appellant to consider a reference to the European Court of Justice in relation to the argument by reference to the Framework Directive. In my judgment the answer is entirely clear, and I refuse such reference.
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