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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Britliff v. Birmingham City Council (DISABILITY DISCRIMINATION) (Rev 1)  UKEAT 0291_18_1608 (16 August 2019)
Cite as:  ICR 653,  UKEAT 0291_18_1608
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|At the Tribunal|
|On 5 July 2019|
HIS HONOUR JUDGE AUERBACH
Transcript of Proceedings
|For the Appellant||MR ADRIAN BRITLIFF
(The Appellant in Person)
|For the Respondent||MR J MEICHEN
Birmingham City Council
Legal and Democratic Services
PO Box 15992
The Claimant is pursuing claims of disability discrimination in the Employment Tribunal, which are defended. It is common ground between the parties that for the purposes of an Equality Act 2010 claim the 2006 United Nations Convention on the Rights of Persons with Disabilities has indirect effect. At a Preliminary Hearing the Employment Tribunal correctly held that it does not have direct effect.
HIS HONOUR JUDGE AUERBACH
"Whether or not the No 1181 EC (Definition of Treaties) United Nations Convention on Rights of Persons with Disabilities Order 2009 is of direct effect and thereby incorporates the Convention into UK law and provides the Claimant with a route to claim for disability discrimination outside of the Equality Act 2010."
"The No 1181 EC (Definition of Treaties) United Nations Convention on Rights of Persons with Disabilities Order 2009 is not of direct effect and does not incorporate the Convention into UK law and does not provide the Claimant with a route to claim for disability discrimination outside of the Equality Act 2010."
"6.15. I asked the claimant to identify for me the rights afforded to him under the UN Convention which were not provided by EqA. He told me they were the right to the highest attainable standard of health, the right to rehabilitation, the right to work and that there were no time limits within which claims have to be brought."
"9. The EU has implemented most of its equality issues by way of Directives e.g. the Framework Directive.
10. In the United Kingdom domestic legislation is enacted or amended to comply with its obligation to transpose Directives into domestic law.
11. One such piece of domestic legislation is the EqA which prohibits discrimination on grounds of protected characteristics (which include disability). It confers jurisdiction to the employment tribunal to determine complaints relating to a contravention of Part 5 of the Act (work) and a contravention of section 108 (relationships that have ended), section 111 (instructing, causing or inducing contraventions) and section 112 (aiding contraventions) that relates to Part 5.
12. If there is a conflict between a provision of EU law and a provision of domestic law, EU law takes precedence. Individuals may, in certain circumstances rely directly on a provision of EU law as giving rise to rights which are enforceable before domestic courts (the principle of 'direct effect'). However, such a provision would only have direct effect if it was sufficiently clear and precise, unconditional and left no room for discretion in its implementation by the EU or member states and the deadline for implementation must have expired. In this case the claimant was unable to identify with precision the rights to which he says the UN Convention gives rise and on which he wishes to rely.
13. However be that as it may I am not concerned with whether the claimant can rely on directly on a directive or for that matter the European Convention on Human Rights or the European Union Charter of Fundamental Rights. I am concerned with the CRPD Order 2009. It does no more than specify the UN Convention as a community treaty for the purposes of the EC Act. The UK has ratified the UN Convention but has not incorporated it into domestic law. The Explanatory Memorandum to the CRPD Order 2009 states clearly at paragraph 7.1: 'The UN Convention builds on existing international human rights instruments in order to explicitly reaffirm the human rights of disabled people. The UN Convention does not aim to establish new human rights for disabled people but sets out with greater clarity the obligation on States to promote, protect, and ensure the human rights that disabled people already have, so that they are treated on an equal basis with other people.'
14 The approach taken to the effect of the UN Convention in domestic courts is illustrated in R (Davey) v Oxfordshire County Council 2017 EWHC 354 in which Lord Justice Bean agreed with the conclusion of Morris J in the court below who had held that the UN Convention 'is an unincorporated international treaty which, absent incorporation, creates no direct obligations in UK domestic law. But by ratifying a convention a State undertakes that wherever possible its laws will conform to the laws and values that the convention enshrines. A domestic UK statute must be interpreted in a way that is consistent with the obligations undertaken by the UK under any relevant international conventions. Words of a UK statute passed after the date of the treaty and dealing with the same subject matter are to be construed, if they are reasonably capable of bearing such a meaning, as intended to carry out the treaty obligation and not to be inconsistent with it: see A v SSHD  UKHL 71.'
15 Lord Justice Bean went on to say there was a strong presumption in favour of interpreting an English statute in a way that did not place the UK in breach of its international obligations, and accordingly the UN Convention could be resorted to as a construction of a particular provision in case of ambiguity or uncertainty. However, he warned great care must be taken in deploying provisions of a convention or treaty which set out broad and basic principles as determinative tools for the interpretation of a concrete measure such as a particular provision of a UK statute. Provisions which are aspirational could not qualify the clear language of primary legislation.
16 Thus the UN Convention may be used by the claimant as an interpretive aid to construction but it is not, as submitted by the claimant, a source of substantive domestic legal rights. There are no 'free standing 'rights under the UN Convention. The CRDP Order 2009 is not of direct effect. It does not incorporate the UN Convention into UK law. The CRDP Order 2009 does not provide the claimant with a route to claim for disability discrimination outside of the EqA 2010."
"Ground 1: The Judge erred because she failed to take proper account:
(1). That the 2009 Order No 1181 provides in s1(2) that the United Nations Convention on the Rights of Persons with Disabilities (UNCPRD) "is to be regarded as one of the Community Treaties" as defined in s 1(2) of the European Communities Act 1972 (ECA 1972);
(2). The effect of s2(1) ECA 1972 is that the rights, powers liabilities etc set out in the UNCPRD "are without further enactment to be given legal effect or used in the UK …" etc. The words of that statute have to be read in light of
Bulmer v Bollinger  EWCA Civ 14, particularly paragraph 5 and paragraph 10 and Miller v Secretary of State for Justice  UKSC 5 paragraph 17 and 60 – 62. See also Davey v Oxfordshire County Council  EWCA Civ 1308 at paragraphs 62 – 64 and the comments at paragraph 64, (noting at 64 that the Judge would say no more without hearing full argument).
(3). Decisions of the CJEU that as a matter of EU law the Directive 2000/78 must be read in accordance with its provisions because it is "an integral part of the EU legal order." See Case C-395/15 Daouidi v Bootes Plus SL and case C-263/12 Z v a Government Department at paragraphs 71 – 76
(4). That notwithstanding the effect of the UNCRPD on EU legislation as set out in those cases it effect in the UK is more 'direct' or immediate because of the consequences which flow from s1(2) of the ECA 1972.
Ground 2: The Judge failed to identify the significant extent of the interpretative obligation arising out of the UNCRPD as set out in the CJEU cases cited above".
The Legal Framework
"If Her Majesty by Order in Council declares that a treaty specified in the Order is to be regarded as one of the EU Treaties as herein defined, the Order shall be conclusive that it is to be so regarded; but a treaty entered into by the United Kingdom after the 22nd January 1972, other than a pre-accession treaty to which the United Kingdom accedes on terms settled on or before that date, shall not be so regarded unless it is so specified, nor be so specified unless a draft of the Order in Council has been approved by resolution of each House of Parliament".
"For purposes of subsections (2) and (3) above, "treaty" includes any international agreement, and any protocol or annex to a treaty or international agreement".
(1) All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression "enforceable EU right" and similar expressions shall be read as referring to one to which this subsection applies.
(2) Subject to Schedule 2 to this Act, at any time after its passing Her Majesty may by Order in Council, and any designated Minister or department may by order, rules, regulations or scheme, make provision—
(a) for the purpose of implementing any EU obligation of the United Kingdom, or enabling any such obligation to be implemented, or of enabling any rights enjoyed or to be enjoyed by the United Kingdom under or by virtue of the Treaties to be exercised; or
(b) for the purpose of dealing with matters arising out of or related to any such obligation or rights or the coming into force, or the operation from time to time, of subsection (1) above;
and in the exercise of any statutory power or duty, including any power to give directions or to legislate by means of orders, rules, regulations or other subordinate instrument, the person entrusted with the power or duty may have regard to the objects of the EU and to any such obligation or rights as aforesaid. In this subsection "designated Minister or department" means such Minister of the Crown or government department as may from time to time be designated by Order in Council in relation to any matter or for any purpose, but subject to such restrictions or conditions (if any) as may be specified by the Order in Council.
The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.
Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others".
Discrimination on the basis of disability" means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation;
"Reasonable accommodation" means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms;"
"Article 3 – General Principles
The principles of the present Convention shall be:
(a). Respect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons;
(c). Full and effective participation and inclusion in society;
(d). Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;
(e). Equality of opportunity;
(g). Equality between men and women;
(h). Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.
Article 4 – General Obligations
1. States Parties undertake to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability. To this end, States Parties undertake:
(a) To adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention;
(b) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities;
(c) To take into account the protection and promotion of the human rights of persons with disabilities in all policies and programmes;
(d) To refrain from engaging in any act or practice that is inconsistent with the present Convention and to ensure that public authorities and institutions act in conformity with the present Convention;
(e) To take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise;
(f) To undertake or promote research and development of universally designed goods, services, equipment and facilities, as defined in article 2 of the present Convention, which should require the minimum possible adaptation and the least cost to meet the specific needs of a person with disabilities, to promote their availability and use, and to promote universal design in the development of standards and guidelines;
(g) To undertake or promote research and development of, and to promote the availability and use of new technologies, including information and communications technologies, mobility aids, devices and assistive technologies, suitable for persons with disabilities, giving priority to technologies at an affordable cost;
(h) To provide accessible information to persons with disabilities about mobility aids, devices and assistive technologies, including new technologies, as well as other forms of assistance, support services and facilities;
(i) To promote the training of professionals and staff working with persons with disabilities in the rights recognized in the present Convention so as to better provide the assistance and services guaranteed by those rights.
2. With regard to economic, social and cultural rights, each State Party undertakes to take measures to the maximum of its available resources and, where needed, within the framework of international cooperation, with a view to achieving progressively the full realization of these rights, without prejudice to those obligations contained in the present Convention that are immediately applicable according to international law.
3. In the development and implementation of legislation and policies to implement the present Convention, and in other decision-making processes concerning issues relating to persons with disabilities, States Parties shall closely consult with and actively involve persons with disabilities, including children with disabilities, through their representative organizations.
4. Nothing in the present Convention shall affect any provisions which are more conducive to the realization of the rights of persons with disabilities and which may be contained in the law of a State Party or international law in force for that State. There shall be no restriction upon or derogation from any of the human rights and fundamental freedoms recognized or existing in any State Party to the present Convention pursuant to law, conventions, regulation or custom on the pretext that the present Convention does not recognize such rights or freedoms or that it recognizes them to a lesser extent.
5. The provisions of the present Convention shall extend to all parts of federal States without any limitations or exceptions.
Article 5 equality and non-discrimination
1. States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law.
2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.
3. In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.
4. Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention".
"1. States Parties recognize the right of persons with disabilities to work, on an equal basis with others; this includes the right to the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities. States Parties shall safeguard and promote the realization of the right to work, including for those who acquire a disability during the course of employment, by taking appropriate steps, including through legislation, to, inter alia:
(a) Prohibit discrimination on the basis of disability with regard to all matters concerning all forms of employment, including conditions of recruitment, hiring and employment, continuance of employment, career advancement and safe and healthy working conditions;
(b) Protect the rights of persons with disabilities, on an equal basis with others, to just and favourable conditions of work, including equal opportunities and equal remuneration for work of equal value, safe and healthy working conditions, including protection from harassment, and the redress of grievances;
(c) Ensure that persons with disabilities are able to exercise their labour and trade union rights on an equal basis with others;
(d) Enable persons with disabilities to have effective access to general technical and vocational guidance programmes, placement services and vocational and continuing training;
(e) Promote employment opportunities and career advancement for persons with disabilities in the labour market, as well as assistance in finding, obtaining, maintaining and returning to employment;
(f) Promote opportunities for self-employment, entrepreneurship, the development of cooperatives and starting one's own business;
(g) Employ persons with disabilities in the public sector;
(h) Promote the employment of persons with disabilities in the private sector through appropriate policies and measures, which may include affirmative action programmes, incentives and other measures;
(i) Ensure that reasonable accommodation is provided to persons with disabilities in the workplace;
(j) Promote the acquisition by persons with disabilities of work experience in the open labour market;
(k) Promote vocational and professional rehabilitation, job retention and return-to-work programmes for persons with disabilities.
2. States Parties shall ensure that persons with disabilities are not held in slavery or in servitude, and are protected, on an equal basis with others, from forced or compulsory labour".
"The UN Convention on the Rights of Persons with Disabilities is hereby approved on behalf of the Community, subject to a reservation in respect of Article 27.1 thereof".
"2. The United Nations Convention on the Rights of Persons with Disabilities signed in New York by the European Community and by the United Kingdom on 30 March 2007 is to be regarded as one of the Community Treaties as defined in section 1(2) of the European Communities Act 1972".
"As we understand the interaction between Community Law, domestic law and the jurisdiction of Industrial Tribunals the position is in summary as follows:
(a) The Industrial Tribunal has no inherent jurisdiction. Its statutory jurisdiction is confined to complaints that may be made to it under specific statutes, such as the Employment Protection (Consolidation) Act 1978, the Sex Discrimination Act 1975, the Race Relations Act 1976, the Equal Pay Act 1970 and any other relevant statute. We are not able to identify the legal source of any jurisdiction in the Tribunal to hear and determine disputes about Community law generally.
(b) In the exercise of its jurisdiction the Tribunal may apply Community Law. The application of Community law may have the effect of displacing provisions in domestic law statutes which preclude a remedy claimed by the applicant. In the present case the remedy claimed by Ms Biggs is unfair dismissal. That is a right conferred on an employee by the 1978 Act and earlier legislation. If a particular applicant finds that the Act contains a barrier which prevents the claim from succeeding but that barrier is incompatible with Community Law, it is displaced in consequence of superior and directly effective Community rights.
(c) In applying Community Law the Tribunal is not assuming or exercising jurisdiction in relation to a "free-standing" Community right separate from rights under domestic law. In our view, some confusion is inherent in or caused by the mesmeric metaphor, "free-standing". "Free-standing" means not supported by a structural framework, not attached or connected to another structure. This is not a correct description of the claim asserted by Ms Biggs. She is not complaining of an infringement of a "free-standing" right in the sense of an independent right of action created by Community Law, unsupported by any legal framework or not attached or connected to any other legal structure. Her claim is within the structural framework of the Employment Protection legislation, subject to the disapplication of the threshold qualifying provisions in accordance with the EOC case. So far as her right is subject to domestic law time limits, she can only have those removed by the application of Community Law if, as explained above, time limits are themselves incompatible with Community Law. For the reasons we have stated they are not."
Discussion and Analysis
The status of the CRPD as a Treaty
Does the CRPD Have Indirect Effect?
Does the CRPD have direct effect?
"In those circumstances, without there being any need to examine the nature and broad logic of the UN Convention, it must be held that the provisions of that Convention are not, as regards their content, provisions that are unconditional and sufficiently precise within the meaning of the case law cited in paragraphs 85 and 86 of the present judgment, and that they therefore do not have direct effect in European Union law. It follows from this that the validity of Directive 2000/78 cannot be assessed in the light of the UN Convention."
"62. The judge held that the UNCRPD is an unincorporated international treaty which, absent incorporation, creates no direct obligations in UK domestic law. But by ratifying a convention a State undertakes that wherever possible its laws will conform to the laws and values that the convention enshrines. A domestic UK statute must be interpreted in a way that is consistent with the obligations undertaken by the UK under any relevant international conventions. Words of a UK statute passed after the date of the treaty and dealing with the same subject matter are to be construed, if they are reasonably capable of bearing such a meaning, as intended to carry out the treaty obligation and not to be inconsistent with it: see A v SSHD  UKHL 71. There is a strong presumption in favour of interpreting an English statute in a way that does not place the UK in breach of its international obligations, and accordingly the UNCRPD could be resorted to as a construction of a particular provision of the 2014 Act in case of ambiguity or uncertainty. However, great care must be taken in deploying provisions of a convention or treaty which set out broad and basic principles as determinative tools for the interpretation of a concrete measure such as a particular provision of a UK statute. Provisions which are aspirational cannot qualify the clear language of primary legislation.
63. Morris J held that no specific ambiguity in the 2014 Act had been identified in respect of which Article 19 might serve as an interpretative tool. He added:
"…The importance of the wishes of the service user is fully addressed in the provisions of the Act itself. The relative balance between those wishes and the assessment of the local authority is struck in the provisions of the Act themselves. In my judgment, and in the light of the principles set out above, there is no warrant for a conclusion that, by dint of the application or consideration of Article 19 itself and the concept of independent living therein, that balance is weighted more in favour of the service user, than it would otherwise be under the Act, to the extent that the service user can have the final say on his own needs and personal budget or dislodge the principle that, under the Act, the decisions are ultimately to be taken by the local authority. The wishes of the disabled person may be a primary influence, but they do not amount to an overriding consideration."
64. On appeal to this court, Mr Burton did not argue that there was any error in the judge's conclusion that Article 19 of the UNCRPD did not assist the Claimant's case. I have set out the judge's conclusions on this topic only because the EHRC, in their written submissions lodged as interveners in this court, argued that "the decision of the Respondent in this case, and the judgment of Mr Justice Morris upholding that decision, goes against the principles of Article 19 of the UNCRPD". I need say no more in the present case than that, with respect to the EHRC, the judge's analysis seems to me entirely correct. But this should not prevent the argument being advanced in a future case where it is the subject of adversarial argument by the parties."
Can Direct Effect be Achieved Through Another Legal Route?
"Thus, EU law in EU Treaties and EU legislation will pass into UK law through the medium of section 2(1) or the implementation provisions of section 2(2) of the 1972 Act, so long as the United Kingdom is party to the EU Treaties. Similarly, so long as the United Kingdom is party to the EU Treaties, UK courts are obliged (i) to interpret EU Treaties, Regulations and Directives in accordance with decisions of the Court of Justice, (ii) to refer unclear points of EU law to the Court of Justice, and (iii) to interpret all domestic legislation, if at all possible, so as to comply with EU law (see Marleasing v La Comercial Internacional de Alimentacion SA (Case C-106/89)  ECR I-4135). And, so long as the United Kingdom is party to the EU Treaties, UK citizens are able to recover damages from the UK government in cases where a decision of one of the organs of the state based on a serious error of EU law has caused them loss".
Conclusions on the Grounds of Appeal
Note 1 The Judge wrote “section 1(2)” at this point but it is agreed that that was clearly a typo. [Back] Note 2 I refer to the 1972 Act, and other measures, where appropriate, as amended. [Back] Note 3 The reservation has no bearing on this case. [Back] Note 4 We are not concerned in this case with the distinction between what is called horizontal and vertical direct effect, bearing in mind that the Respondent is a local authority. [Back] Note 5 Mummery J and members;  ICR 811 at 830B-G. [Back]
Note 1 The Judge wrote “section 1(2)” at this point but it is agreed that that was clearly a typo. [Back]
Note 2 I refer to the 1972 Act, and other measures, where appropriate, as amended. [Back]
Note 3 The reservation has no bearing on this case. [Back]
Note 4 We are not concerned in this case with the distinction between what is called horizontal and vertical direct effect, bearing in mind that the Respondent is a local authority. [Back]
Note 5 Mummery J and members;  ICR 811 at 830B-G. [Back]