Hainsworth v Ministry of Defence Equality and Human Rights Commission (Intervener)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Lord Justice Tomlinson,Lord Justice Briggs |
| Judgment Date | 13 May 2014 |
| Neutral Citation | [2014] EWCA Civ 763 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | A2/2013/3154 |
| Date | 13 May 2014 |
[2014] EWCA Civ 763
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London WC2A 2LL
Lord Justice Laws
Lord Justice Tomlinson
Lord Justice Briggs
A2/2013/3154
Mr M Pilgerstorfer (instructed by Dean Wilson LLP) appeared on behalf of the Appellant
Mr D Barr QC (instructed by Treasury Solicitors) appeared on behalf of the Respondent
Mr P Mitchell and Mr C Milson (instructed by the Equality and Human Rights Commission) appeared on behalf of the Intervener
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 Respondent was obliged to make adjustments to a PCP applied to its employee, the Claimant, to enable the Claimant's disabled daughter (a person associated with the Claimant) to undergo training and education."
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:
"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."
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):
"The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage."
"A" in this provision is the person upon whom the duty to make reasonable adjustment falls (see section 20(1)).
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:
"16. The provision of measures to accommodate the needs of disabled people at the workplace plays an important role in combating discrimination on grounds of disability.
17. This Directive does not require the recruitment, promotion, maintenance in employment or training of an individual who is not competent, capable and available to perform the essential functions of the post concerned or to undergo the relevant training, without prejudice to the obligation to provide reasonable accommodation for people with disabilities ….
20. Appropriate measures should be provided, ie effective and practical measures to adapt the workplace to the disability, for example adapting premises and equipment, patterns of working time, the distribution of tasks or the provision of training or integration resources.
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 life long learning with regard to disabled persons."
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...
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