UK Supreme Court Blog

EDITORS: Dan Tench, Emma Cross, Zainab Hodgson, Francesca Knight, James Warshaw and Natalie Haefner (CMS)
Hugh Tomlinson KC, Matthew Ryder KC, Nandini Bulchandani and Daniel Rudd (Matrix)

Background

The appellant was employed by the Ministry of Defence as an Inclusion Support Development Teacher, and was required to provide services within a British enclave in Germany, predominately within the Paderborn Garrison.

The appellant’s daughter has Down’s syndrome and is a disabled person within the meaning of the Equality Act 2010, s 6. The respondent provided facilities for the education of children of service and civilian personnel serving abroad, including at Paderborn Garrison. However, it did not cater for children who had more significant educational needs there, resulting in the facilities being unsuitable for the appellant’s daughter.

The appellant requested that she be transferred to somewhere within the UK where her daughter’s special needs could be met, but this was denied. The appellant argued that this breached the Equality Act 2010, s 20(3), which creates a duty to make reasonable adjustments “where a provision, criterion or practice… puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled.”

The appellant conceded before the Employment Appeals Tribunal that a literal approach to the Equality Act 2010 was that the duty owed by an employer was only to an employee or an application for employment. However she argued that Council Directive 2000/78/EC, art 5, which provided for equal treatment in employment, meant that the Equality Act had to be understood as providing duties to accommodate her special needs. Alternatively, she argued that she was entitled to rely directly on the directive, as the respondent was an emanation of the State.

The decision in the Court of Appeal             

The Court of Appeal considered that art 5, while not stipulating that the person suffering the disability must be an employee, was nonetheless focused obviously and entirely on provision for disabled employees, prospective employees and trainees. The court considered this interpretation to be supported by Recital 20, without being contradicted by other recitals.

The court suggested that applying art 5 to a broader range of individuals would make it hopelessly uncertain, as it could not be clear who would be covered by it. It considered the concept of “association” to be vague and open-ended.

It then considered the case of Coleman v Attridge Law [2008] All ER (EC) 1105, which involved a claim that an individual had been treated less favourable than other employees because she was the primary carer of a disabled child. The employment tribunal made a preliminary reference to the CJEU on whether the prohibition on direct discrimination could be applied equally to someone who was treated less favourably due to the disability of his child. However, while indicating that the principle of equal treatment was to combat all forms of direct discrimination on grounds of disability and that this was not necessarily limited to people who themselves have a disability, the court did find that some provisions can only apply to disabled people, and considered art 5 to be one of those provisions.

The court further differentiated the appellant’s case from Coleman, as the claimant in that case had alleged that she was the victim of positive discrimination due to her child’s disability, which was not being claimed in the present case.

The court did not accept that the UN Convention on the Rights of Persons with Disabilities required an art 5 interpretation revision.

The appeal in the Supreme Court

The Supreme Court was due to consider whether the appellant can advance a reasonable adjustments claim because her disabled daughter, who is a person associated with her, requires the adjustment to undergo education.

Given that the Employment Tribunal, the Employment Appeals Tribunal and the Court of Appeal have all resolutely held that the impugned Equality Act provision can only apply to people in actual or potential employment, it will be interesting to see whether the Supreme Court is willing to accept the argument that the UN Convention on the Rights of Persons with Disabilities requires a broader interpretation of the Act or Council Directive 2000/78/EC, art 5.

Should the Supreme Court feel that the art 5 point is unclear, they may opt to make a preliminary reference to the CJEU. The Court of Appeal declined to do this.