(1) EBR ATTRIDGE LAW LLP (FORMERLY ATTRIDGE LAW) (2) MR S LAW v MS S COLEMAN [2009] UKEAT 0071_09_3010

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0071_09_3010Case No Appeal No. UKEAT/0071/09Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
(1) EBR ATTRIDGE LAW LLP (FORMERLY ATTRIDGE LAW) (2) MR S LAWAPPELLANTMS S COLEMANRESPONDENT
Before
Mr Justice UnderhillDate 30 October 2009
[1]APPEARANCES For the First Appellant EBR ATTRIDGE LAW LLP (formerly Attridge Law) No appearance or representation by or on behalf of the First Appellant For the Second Appellant MR ADAM SOLOMON (of Counsel) Instructed by: Messrs Russell Cooke 2 Putney Hill London SW15 6AB For the Respondent MR PAUL MICHELL (of Counsel) Instructed by: Messrs Bates Wells & Braithwaite LLP Scandinavian House 2-6 Cannon Street London EC2M 6YH SUMMARY DISABILITY DISCRIMINATION – "Associative" discrimination The Disability Discrimination Act 1995 can be interpreted so as to apply to "associative" discrimination as required by the decision of the European Court of Justice ( [2008] ICR 1128 ) THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT) INTRODUCTION The background to this appeal is well-known, at least to employment lawyers. In brief:(1) The Claimant was until her resignation with effect from 4 March 2005 a legal secretary working for a firm of solicitors originally called Attridge Law: the partners in that firm are now partners in a merged firm called EBR Attridge LLP. She is the principal carer for her disabled son. It is her case that she suffered unlawful discrimination by the firm, on account of her son's disability (so-called "associative discrimination"); and that her resignation had been in response to that discrimination.(2) In August 2005 the Claimant brought proceedings in the Employment Tribunal against the firm and one of its solicitors, Mr Steven Law (who became a partner in early 2005), claiming both under the Disability Discrimination Act 1995 (as amended) and for unfair dismissal. The 1995 Act does not on its face apply to associative discrimination; but it was the Claimant's case that the effect of the relevant EU Directive, Council Directive 2000/78/EC (the so-called "Framework Directive"), was to outlaw such discrimination and that it was open to the Tribunal to construe the Act accordingly. By a decision sent to the parties on 23 May 2006 Judge Stacey, sitting as a judge alone in the London South Employment Tribunal, held that a reference should be made to the European Court of Justice asking whether associative discrimination fell within the provisions of the Directive. The reference was formally made in July 2006.(3) The respondents appealed against the order making a reference, but this Tribunal (Judge Peter Clark, sitting alone) dismissed the appeal ( [2007] ICR 654 ). Judge Clark, like Judge Stacey, held that if it were decided that the Directive covered associative discrimination the 1995 Act was capable of being interpreted so as to apply to such discrimination as a matter of domestic law.(4) In its decision handed down on 17 July 2008 ( [2008] ICR 1128 ) the European Court of Justice held that associative discrimination did fall within the terms of the Directive: I set out its reasoning at para. 8 below.(5) The case came back before Judge Stacey on 30 September 2008. By a Judgment and Reasons sent to the parties on 26 November 2008 she held, consistently with her original decision, that the Act could be so construed as to apply to associative discrimination and accordingly that the Tribunal had jurisdiction to entertain the Claimant's claim.[2]The appeal before me is against the decision of the Employment Tribunal that it has jurisdiction to entertain the claim. The issue has already been considered once at this level, by Judge Clark as part of the decision referred to at para. 1 (3) above; but it was common ground before me that it was open to me to reconsider it. Both the respondents – i.e. Mr Law and the firm - have appealed, though only Mr Law has been represented before me, by Mr Adam Solomon of counsel. Before the Judge neither of the respondents appeared, although they submitted written representations. The Claimant was represented both before the Judge and before me by Mr Paul Michell of counsel. STATUTORY PROVISIONS AND LEGISLATIVE HISTORY[3]At the time that the 1995 Act was originally enacted there was no EU legislation proscribing disability discrimination. However, on 27 November 2000 the Council of Ministers promulgated the Framework Directive, which required member states to introduce measures to combat discrimination on various specified grounds, including disability. By art. 18 the Directive was to be implemented by 2 December 2003, subject to a right to an extension, "in order to take account of particular conditions", for a further period of up to three years. Art. 2 contained definitions of discrimination and harassment which did not correspond to those in the 1995 Act as it then stood. Accordingly, under the powers conferred by s. 2 (2) of the European Communities Act 1972, the Secretary of State on 26 June 2003 made the Disability Discrimination Act 1995 (Amendment) Regulations 2003 (SI 2003/1673), introducing a number of amendments to the 1995 Act as originally enacted, with effect from 1 October 2004.[4]Several of the acts pleaded by the Claimant in the Particulars of Claim accompanying her ET1 pre-dated the coming into force of the amendments introduced by the 2003 Regulations. However, it appears to be accepted that the Claimant is now relying only on the amended Act and thus complaining only of acts or omissions occurring on or after 1 October 2004. The Judge recorded that she was complaining of discrimination falling within the terms of ss. 3A (1), 3A (5), 3B and 55. The Claimant has since confirmed that she no longer relies on s. 3A (1). The provisions thus now relied on are in the following terms: 3A Meaning of "discrimination" (1)-(4) … (5) A person directly discriminates against a disabled person if, on the ground of the disabled person's disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person. 3B Meaning of "harassment"(1) For the purposes of this Part, a person subjects a disabled person to harassment where, for a reason which relates to the disabled person's disability, he engages in unwanted conduct which has the purpose or effect of— (a) violating the disabled person's dignity, or (b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him.(2) Conduct shall be regarded as having the effect referred to in paragraph (a) or (b) of subsection (1) only if, having regard to all the circumstances, including in particular the perception of the disabled person, it should reasonably be considered as having that effect. 55. Victimisation (1) For the purposes of Part II or Part III, a person ('A') discriminates against another person ('B') if— (a) he treats B less favourably than he treats or would treat other persons whose circumstances are the same as B's; and (b) he does so for a reason mentioned in subsection (2). (2) The reasons are that— (a) B has— (i) brought proceedings against A or any other person under this Act; or (ii) given evidence or information in connection with such proceedings brought by any person; or (iii) otherwise done anything under this Act in relation to A or any other person; or (iv) alleged that A or any other person has (whether or not the allegation so states) contravened this Act; or (b) A believes or suspects that B has done or intends to do any of those things.(3) Where B is a disabled person, or a person who has had a disability, the disability in question shall be disregarded in comparing his circumstances with those of any other person for the purposes of subsection (1)(a).(4) Subsection (1) does not apply to treatment of a person because of an allegation made by him if the allegation was false and not made in good faith. Such discrimination and harassment are rendered unlawful in the employment context by s. 4 of the Act, which provides (so far as material): (1) … (2) It is unlawful for an employer to discriminate against a disabled person whom he employs— (a)-(c) …; or (d) by dismissing him, or subjecting him to any other detriment. (3) It is also unlawful for an employer, in relation to employment by him, to subject to harassment— (a) a disabled person whom he employs; or (b) … .[5]The 1995 Act has since been extensively amended by the Disability Discrimination Act 2005 . The amendments in question post-date the acts of which the Claimant complains; but it was submitted before me that observations in the travaux préparatoires are relevant to the issues on this appeal – see para. 19 below. THE DIRECTIVE AND THE DECISION OF THE EUROPEAN COURT OF JUSTICE[6]Article 1 of the Framework Directive identifies the discrimination to which it relates as "discrimination on the grounds of religion or belief, disability, age or sexual orientation". Art. 2, which is headed "Concept of Discrimination", reads (so far as relevant) as follows: 1. For the purposes of this Directive, the "principle of equal treatment" shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1. 2. For the purposes of paragraph 1—(a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1;(b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless— (i) that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, or (ii) as regards persons with a particular disability, the employer or any person or organisation to whom this Directive applies, is obliged, under national legislation, to take appropriate measures in line with the principles contained in Article 5 in order to eliminate disadvantages entailed by such provision, criterion or practice. 3. Harassment shall be deemed to be a form of discrimination within the meaning of paragraph 1, when unwanted conduct related to any of the grounds referred to in Article 1 takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. In this context, the concept of harassment may be defined in accordance with the national laws and practice of the Member States. 4. … 5. … Article 11, headed "Victimisation", reads: Member States shall introduce into their national legal systems such measures as are necessary to protect employees against dismissal or other adverse treatment by the employer as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment.[7]I need not set out the reasoning of the Court of Justice in any detail: what matters for present purposes is what it decided rather than the route by which it reached its decision. In short, it acknowledged that the Directive made no express reference to associative discrimination and that its specific provisions appeared to be directed only at cases where the claimant was himself or herself disabled. But it held that the objects of the Directive, as set out in the recitals, required a broader approach. As it put it at paras. 48 ff. (pp. 1146-7): 48 … [T]hose objectives, and the effectiveness of Directive 2000/78, would be undermined if an employee in the claimant's situation cannot rely on the prohibition of direct discrimination laid down by article 2(2)(a) of that Directive where it has been established that he has been treated less favourably than another employee is, has been or would be treated in a comparable situation, on the grounds of his child's disability, and this is the case even though that employee is not himself disabled. 49 In that regard, it follows from recital 11 in the preamble to the Directive that the Community legislature also took the view that discrimination based on religion or belief, disability, age or sexual orientation may undermine the achievement of the objectives of the Treaty, in particular, as regards employment. 50 Although, in a situation such as that in the present case, the person who is subject to direct discrimination on grounds of disability is not herself disabled, the fact remains that it is the disability which, according to Ms Coleman, is the ground for the less favourable treatment which she claims to have suffered. As is apparent from para 38 of this judgment, Directive 2000/78, which seeks to combat all forms of discrimination on grounds of disability in the field of employment and occupation, applies not to a particular category of person but by reference to the grounds mentioned in article 1. 51 Where it is established that an employee in a situation such as that in the present case suffers direct discrimination on grounds of disability, an interpretation of Directive 2000/78 limiting its application only to people who are themselves disabled is liable to deprive that Directive of an important element of its effectiveness and to reduce the protection which it is intended to guarantee. … 56 In the light of the foregoing considerations, the answer to the first part of question 1 and to questions 2 and 3 must be that Directive 2000/78, and, in particular, articles 1 and 2(1) and (2)(a) thereof, must be interpreted as meaning that the prohibition of direct discrimination laid down by those provisions is not limited only to people who are themselves disabled. Where an employer treats an employee who is not himself disabled less favourably than another employee is, has been or would be treated in a comparable situation, and it is established that the less favourable treatment of that employee is based on the disability of his child, whose care is provided primarily by that employee, such treatment is contrary to the prohibition of direct discrimination laid down by article 2(2)(a). A similar decision was reached with regard to harassment at para. 62 of the judgment (p. 1148). The Court did not need to consider separately the question of victimisation, since the effect of art. 11 would be that the legal viability of the Claimant's claim of victimisation depended – so far as the Directive was concerned – on the question whether the treatment of which she complained constituted unlawful discrimination. THE DECISION OF THE EMPLOYMENT TRIBUNAL[8]The primary issue before the Tribunal was whether the provisions of the 1995 Act which I have set out at para. 4 above could be interpreted so as to cover associative discrimination. I mean no disrespect to Judge Stacey's clear and careful judgment if I do not set out in any detail the reasoning by which she came to hold that it did: the question is one of pure law, and since I shall have to traverse much of the same ground myself, there is nothing to be gained by doing so twice. In short, her conclusion was that the effect of the authorities to which she was referred was that she was obliged to interpret the statute so as to conform with the effect of the Directive as declared by the European Court of Justice – by supplying words if necessary – unless it contained "an express and unambiguous indication to the contrary"; and that since there was no such indication she should accept the Claimant's case. She believed that it was indeed necessary to supply some words in ss. 3A, 3B and 4, which she did as follows (see para. 33 of the judgment): 3A Meaning of "discrimination" (5) A person directly discriminates against a disabled person or a person associated with a disabled person if, on the ground of the disabled person's disability, he treats the disabled person or a person associated with a disabled person less favourably than he treats or would treat a person not having that particular disability or association (as the case may be) whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person or the person associated with the disabled person . 3B Meaning of "harassment"(1) For the purposes of this Part, a person subjects a disabled person or a person associated with a disabled person to harassment where, for a reason which relates to the disabled person's disability, he engages in unwanted conduct which has the purpose or effect of— (a) violating the disabled person's dignity or the dignity of a person associated with a disabled person , or (b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him.(2) Conduct shall be regarded as having the effect referred to in paragraph (a) or (b) of subsection (1) only if, having regard to all the circumstances, including in particular the perception of the disabled person or (as the case may be) a person associated with the disabled person , it should reasonably be considered as having that effect. 4 Employers: discrimination and harassment (1) It is unlawful for an employer to discriminate against a disabled person or a person associated with a disabled person — (a) in the arrangements which he makes for the purpose of determining to whom he should offer employment; (b) in the terms on which he offers that person employment; or (c) by refusing to offer, or deliberately not offering, him employment. (2) It is unlawful for an employer to discriminate against a disabled person, or a person or a person associated with a disabled person , whom he employs— ….(3) It is also unlawful for an employer, in relation to employment by him, to subject to harassment— (a) a disabled person or a person associated with a disabled person whom he employs; or (b) a disabled person or a person associated with a disabled person who has applied to him for employment.[9]There was, however, also before the Judge a distinct issue as to whether the Claimant could rely on the Directive given that the final date for its implementation – being 2 December 2006 (see para. 3 above) – had not passed as at the date of the acts complained of: the Respondents relied on the decision of this Tribunal in Lloyd-Briden v Worthing College [2007] 3 CMLR 27. The Judge pointed out that in her 2006 decision she had already held that the obligation to interpret the Act in accordance with the Directive applied with effect from 1 October 2004, since that was the date that the 2003 Regulations took effect. She essentially relied on the same reasoning (see Reasons para. 23). She accepted (para. 24) that that meant that the Claimant could complain only of acts of discrimination occurring after 1 October 2004; but she observed that the bulk of the allegations related to that period. THE GROUNDS OF APPEAL[10]The Appellants in the Notice of Appeal challenge the Judge's decision on both points. In short:(a) (A) They contend that the Tribunal "has distorted and rewritten" the 1995 Act by reading in words so as to outlaw associative discrimination.(b) (B) They maintain that the Directive could in any event have no effect on the interpretation of the Act until 2 December 2006: they maintain their reliance on Lloyd-Briden v Worthing College . I will take the two issues in turn. (A) CAN THE STATUTORY PROVISIONS BE INTERPRETED SO AS TO GIVE EFFECT TO THE TERMS OF THE DIRECTIVE ?[11]It is a principle of EU law that the courts and tribunals of member states should "so far as possible" interpret domestic legislation in order to give effect to the state's obligations under EU law, typically arising under a directive: the locus classicus is the decision of the European Court of Justice in Marleasing SA v La Comercial Internacionial de Alimentacion SA [1990] ECR I-4135 . It is now well established in UK law that pursuant to that obligation a court or tribunal can in some circumstances go beyond the traditional strict limits of statutory construction and can read words into a statute in order to give effect to EU legislation which the statute was evidently intended to implement. Well-known examples in the employment field are the decisions of the House of Lords in Pickstone v Freemans plc [1989] AC 66 and Litster v Forth Dry Dock & Engineering Co. Ltd. [1990] 1 AC 546 . But it is, equally, acknowledged that that is not legitimate in every case: that is recognised by the phrase "so far as possible". The difficulty is to define the touchstone for distinguishing between the two types of case, or – to put it another way – to define the limits of what is "possible".[12]Mr Michell submitted that the proper approach to that question is now authoritatively established by the decision of the House of Lords in Ghaidan v Godin-Mendoza [2004] 2 AC 557 . In that case the House was concerned with the extent of the obligation under s. 3 (1) of the Human Rights Act 1998 to read and give effect to UK legislation "so far as it is possible to do so" in a way which is compatible with Convention rights; but Mr Michell submitted that the two situations were substantially identical, and – as will appear – the majority in the House themselves relied on the analogy. At paras. 26-33 (pp. 570-572) Lord Nicholls said this: 26 Section 3 is a key section in the Human Rights Act 1998. It is one of the primary means by which Convention rights are brought into the law of this country. Parliament has decreed that all legislation, existing and future, shall be interpreted in a particular way. All legislation must be read and given effect to in a way which is compatible with the Convention rights "so far as it is possible to do so". This is the intention of Parliament, expressed in section 3, and the courts must give effect to this intention. 27 Unfortunately, in making this provision for the interpretation of legislation, section 3 itself is not free from ambiguity. Section 3 is open to more than one interpretation. The difficulty lies in the word "possible". Section 3(1), read in conjunction with section 3(2) and section 4, makes one matter clear: Parliament expressly envisaged that not all legislation would be capable of being made Convention-compliant by application of section 3. Sometimes it would be possible, sometimes not. What is not clear is the test to be applied in separating the sheep from the goats. What is the standard, or the criterion, by which "possibility" is to be judged? A comprehensive answer to this question is proving elusive. The courts, including your Lordships' House, are still cautiously feeling their way forward as experience in the application of section 3 gradually accumulates. 28 One tenable interpretation of the word "possible" would be that section 3 is confined to requiring courts to resolve ambiguities. Where the words under consideration fairly admit of more than one meaning the Convention-compliant meaning is to prevail. Words should be given the meaning which best accords with the Convention rights. 29 This interpretation of section 3 would give the section a comparatively narrow scope. This is not the view which has prevailed. It is now generally accepted that the application of section 3 does not depend upon the presence of ambiguity in the legislation being interpreted. Even if, construed according to the ordinary principles of interpretation, the meaning of the legislation admits of no doubt, section 3 may none the less require the legislation to be given a different meaning. The decision of your Lordships' House in RvA (no 2) [2002] 1 AC 45 is an instance of this. The House read words into section 41 of the Youth Justice and Criminal Evidence Act 1999 so as to make that section compliant with an accused's right to a fair trial under article 6. The House did so even though the statutory language was not ambiguous. 30 From this it follows that the interpretative obligation decreed by section 3 is of an unusual and far-reaching character. Section 3 may require a court to depart from the unambiguous meaning the legislation would otherwise bear. In the ordinary course the interpretation of legislation involves seeking the intention reasonably to be attributed to Parliament in using the language in question. Section 3 may require the court to depart from this legislative intention, that is, depart from the intention of the Parliament which enacted the legislation. The question of difficulty is how far, and in what circumstances, section 3 requires a court to depart from the intention of the enacting Parliament. The answer to this question depends upon the intention reasonably to be attributed to Parliament in enacting section 3. 31 On this the first point to be considered is how far, when enacting section 3, Parliament intended that the actual language of a statute, as distinct from the concept expressed in that language, should be determinative. Since section 3 relates to the "interpretation" of legislation, it is natural to focus attention initially on the language used in the legislative provision being considered. But once it is accepted that section 3 may require legislation to bear a meaning which departs from the unambiguous meaning the legislation would otherwise bear, it becomes impossible to suppose Parliament intended that the operation of section 3 should depend critically upon the particular form of words adopted by the parliamentary draftsman in the statutory provision under consideration. That would make the application of section 3 something of a semantic lottery. If the draftsman chose to express the concept being enacted in one form of words, section 3 would be available to achieve Convention-compliance. If he chose a different form of words, section 3 would be impotent. 32 From this the conclusion which seems inescapable is that the mere fact the language under consideration is inconsistent with a Convention-compliant meaning does not of itself make a Convention-compliant interpretation under section 3 impossible. Section 3 enables language to be interpreted restrictively or expansively. But section 3 goes further than this. It is also apt to require a court to read in words which change the meaning of the enacted legislation, so as to make it Convention-compliant. In other words, the intention of Parliament in enacting section 3 was that, to an extent bounded only by what is "possible", a court can modify the meaning, and hence the effect, of primary and secondary legislation. 33 Parliament, however, cannot have intended that in the discharge of this extended interpretative function the courts should adopt a meaning inconsistent with a fundamental feature of [the] legislation. That would be to cross the constitutional boundary section 3 seeks to demarcate and preserve. Parliament has retained the right to enact legislation in terms which are not Convention-compliant. The meaning imported by application of section 3 must be compatible with the underlying thrust of the legislation being construed. Words implied must, in the phrase of my noble and learned friend, Lord Rodger of Earlsferry, "go with the grain of the legislation". Nor can Parliament have intended that section 3 should require courts to make decisions for which they are not equipped. There may be several ways of making a provision Convention-compliant, and the choice may involve issues calling for legislative deliberation. Lord Steyn agreed with Lord Nicholls. On the s. 3 issue, after making some introductory observations at paras. 38-43, he said this (at pp. 574-5): 44. It is necessary to state what section 3(1), and in particular the word "possible", does not mean. First, section 3(1) applies even if there is no ambiguity in the language in the sense of it being capable of bearing two possible meanings. The word "possible" in section 3(1) is used in a different and much stronger sense. Secondly, section 3(1) imposes a stronger and more radical obligation than to adopt a purposive interpretation in the light of the ECHR. Thirdly, the draftsman of the Act had before him the model of the New Zealand Bill of Rights Act which imposes a requirement that the interpretation to be adopted must be reasonable. Parliament specifically rejected the legislative model of requiring a reasonable interpretation. 45 Instead the draftsman had resort to the analogy of the obligation under the EEC Treaty on national courts, as far as possible, to interpret national legislation in the light of the wording and purpose of Directives. In Marleasing SA v La Comercial Internacional de Alimentación SA (Case C-106/89) [1990] ECR I-4135 , 4159 the European Court of

Justice defined this obligation as follows:

"It follows that, in applying national law, whether the provisions in questions were adopted before or after the Directive, the national court called upon to interpret it is required to do so, as far as possible, in light of the wording and the purpose of the Directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of article 189 of the Treaty."
Given the undoubted strength of this interpretative obligation under EEC law, this is a significant signpost to the meaning of section 3(1) in the 1998 Act. He then went on to refer to cases which supported the expansive approach to s. 3 which he endorsed, including (at para. 48) Pickstone and Litster . He continued (at p. 577): 50 Having had the opportunity to reconsider the matter in some depth, I am not disposed to try to formulate precise rules about where section 3 may not be used. Like the proverbial elephant such a case ought generally to be easily identifiable. What is necessary, however, is to emphasise that interpretation under section 3(1) is the prime remedial remedy and that resort to section 4 must always be an exceptional course. In practical effect there is a strong rebuttable presumption in favour of an interpretation consistent with Convention rights. … Lord Rodger, having reviewed the earlier case-law about s. 3, said this (at pp. 599-600): 118 When Parliament provided that, "so far as it is possible to do so", legislation must be read and given effect compatibly with Convention rights, it was referring, at the least, to the broadest powers of interpreting legislation that the courts had exercised before 1998. In particular, Parliament will have been aware of what the courts had done in order to meet their obligation to interpret domestic legislation " so far as possible , in the light of the wording and the purpose of the [Community] Directive in order to achieve the result pursued by the latter": Marleasing SA v La Comercial Internacional de Alimentación SA (Case C-106/89) [1990] ECR I-4135 , 4159, para 8 (emphasis added). Both Pickstone v Freemans plc [1989] AC 66 and Litster v Forth Dry Dock & Engineering Co Ltd [1990] 1 AC 546 show how, long before 1998, this House had found it possible to read words into domestic regulations so as to give them a construction which accorded with the provisions of the underlying Community Directive. As Lord Oliver of Aylmerton noted in Litster , at p 577a-b, Pickstone had established that:
"the greater flexibility available to the court in applying a purposive construction to legislation designed to give effect to the United Kingdom's Treaty obligations to the Community enables the court, where necessary, to supply by implication words appropriate to comply with those obligations …"
Lord Oliver was satisfied that the implication which he judged appropriate in that case was entirely consistent with the general scheme of the domestic regulations and was necessary if they were effectively to fulfil their purpose of giving effect to the provisions of the Directive. After referring to certain Privy Council authorities he continued (at pp. 600-1): 121 For present purposes, it is sufficient to notice that cases such as Pickstone v Freemans plc [1989] AC 66 and Litster v Forth Dry Dock & Engineering Co Ltd [1990] 1 AC 546 suggest that, in terms of section 3(1) of the 1998 Act, it is possible for the courts to supply by implication words that are appropriate to ensure that legislation is read in a way which is compatible with Convention rights. When the court spells out the words that are to be implied, it may look as if it is "amending" the legislation, but that is not the case. If the court implies words that are consistent with the scheme of the legislation but necessary to make it compatible with Convention rights, it is simply performing the duty which Parliament has imposed on it and on others. It is reading the legislation in a way that draws out the full implications of its terms and of the Convention rights. And, by its very nature, an implication will go with the grain of the legislation. By contrast, using a Convention right to read in words that are inconsistent with the scheme of the legislation or with its essential principles as disclosed by its provisions does not involve any form of interpretation, by implication or otherwise. It falls on the wrong side of the boundary between interpretation and amendment of the statute. Lord Rodger went on to consider the question of the drafting or other techniques to be employed in a case where "interpretation" of a domestic statute so as to give effect to Convention (or EU) rights is permissible. He said (at pp. 601-2): 122 When Housman addressed the meeting of the Classical Association in Cambridge in 1921, he reminded them that the key to the sound emendation of a corrupt text does not lie in altering the text by changing one letter rather than by supplying half a dozen words. The key is that the emendation must start from a careful consideration of the writer's thought. Similarly, the key to what it is possible for the courts to imply into legislation without crossing the border from interpretation to amendment does not lie in the number of words that have to be read in. The key lies in a careful consideration of the essential principles and scope of the legislation being interpreted. If the insertion of one word contradicts those principles or goes beyond the scope of the legislation, it amounts to impermissible amendment. On the other hand, if the implication of a dozen words leaves the essential principles and scope of the legislation intact but allows it to be read in a way which is compatible with Convention rights, the implication is a legitimate exercise of the powers conferred by section 3(1). Of course, the greater the extent of the proposed implication, the greater the need to make sure that the court is not going beyond the scheme of the legislation and embarking upon amendment. Nevertheless, what matters is not the number of words but their effect. For this reason, in the Community law context, judges have rightly been concerned with the effect of any proposed implication, but have been relaxed about its exact form. See, for example, Lord Keith of Kinkel and Lord Oliver of Aylmerton in Pickstone v Freemans plc [1989] AC 66 , 112d , 126a-b . 123 Attaching decisive importance to the precise adjustments required to the language of any particular provision would reduce the exercise envisaged by section 3(1) to a game where the outcome would depend in part on the particular turn of phrase chosen by the draftsman and in part on the skill of the court in devising brief formulae to make the provision compatible with Convention rights. The statute book is the work of many different hands in different parliaments over hundreds of years and, even today, two different draftsmen might choose different language to express the same proposition. In enacting section 3(1), it cannot have been the intention of Parliament to place those asserting their rights at the mercy of the linguistic choices of the individual who happened to draft the provision in question. What matters is not so much the particular phraseology chosen by the draftsman as the substance of the measure which Parliament has enacted in those words. Equally, it cannot have been the intention of Parliament to place a premium on the skill of those called on to think up a neat way round the draftsman's language. Parliament was not out to devise an entertaining parlour game for lawyers, but, so far as possible, to make legislation operate compatibly with Convention rights. This means concentrating on matters of substance, rather than on matters of mere language. 124 Sometimes it may be possible to isolate a particular phrase which causes the difficulty and to read in words that modify it so as to remove the incompatibility. Or else the court may read in words that qualify the provision as a whole. At other times the appropriate solution may be to read down the provision so that it falls to be given effect in a way that is compatible with the Convention rights in question. In other cases the easiest solution may be to put the offending part of the provision into different words which convey the meaning that will be compatible with those rights. The preferred technique will depend on the particular provision and also, in reality, on the person doing the interpreting. This does not matter since they are simply different means of achieving the same substantive result. However, precisely because section 3(1) is to be operated by many others besides the courts, and because it is concerned with interpreting and not with amending the offending provision, it respectfully seems to me that it would be going too far to insist that those using the section to interpret legislation should match the standards to be expected of a parliamentary draftsman amending the provision: cf R v Lambert [2002] 2 AC 545 , 585, para 80, per Lord Hope of Craighead. It is enough that the interpretation placed on the provision should be clear, however it may be expressed and whatever the precise means adopted to achieve it. Lady Hale expressly agreed with both Lord Steyn and Lord Rodger on the s. 3 issue: see para. 145 (p. 609). Lord Millett dissented. (A succinct summary by counsel of the effect of Ghaidan was approved by the Court of Appeal in its recent decision in Vodafone 2 v HMRC [2009] STC 1480 ( [2009] EWCA Civ 446 ) - see at paras. 37-38 (pp. 1493-4); but I have preferred to go to the fountainhead.)[13]It is entirely clear from those passages – and it was common ground before me - that the approach to the application of s. 3 of the 1998 Act advocated by the majority is equally applicable in cases of the present kind, where a court or tribunal is obliged "so far as possible" to interpret a domestic statute in order to give effect to EU law; and Ghaidan has indeed since been so applied by the Court of Appeal in a case involving EU law – see HMRC v. IDT Card Services Ireland Ltd [2006] STC 1252 . 14. Applying that approach, I agree with the Judge, and with Judge Clark when the matter was first before this Tribunal, that there is nothing "impossible" about adding words to the provisions of the 1995 Act so as to cover associative discrimination. No doubt such an addition would change the meaning of the 1995 Act, but, as the speeches in Ghaidan make clear, that is not in itself impermissible (see, e.g., per Lord Nicholls at paras. 32-33). The real question is whether it would do so in a manner which is not "compatible with the underlying thrust of the legislation" ( per Lord Nicholls at para. 33) or which is "inconsistent with the scheme of the legislation or its general principles" ( per Lord Rodger at para. 121). In Ghaidan the majority were prepared to interpret the words "wife or husband" in Schedule 1 of the Rent Act 1977 as extending to same-sex partners. That was plainly not the intention of Parliament when the act was enacted, nor does it correspond to the actual meaning of the words, however liberally construed; but the implication was necessary in order to give effect to Convention rights and it went "with the grain of the legislation" (in Lord Rodger's phrase). In my view the situation with which I am concerned is closely analogous. The proscription of associative discrimination is an extension of the scope of the legislation as enacted, but it is in no sense repugnant to it. On the contrary, it is an extension fully in conformity with the aims of the legislation as drafted. The concept of discrimination "on the ground of disability" still remains central. In the case of other kinds of discrimination, the UK legislation, as construed by the courts without reference to EU law, already outlaws associative discrimination: see the decision of this Tribunal in Showboat Entertainment Centre Ltd v Owens [1984] ICR 65 , approved by the Court of Appeal in Weathersfield Ltd v Sargent [1999] ICR 425 . The particular route to that result adopted in those cases is not available here because of the specific references in the 1995 Act to "a disabled person", but the conclusion reached in them confirms that as a matter of UK law the policy underlying the anti-discrimination legislation applies to associative discrimination as much as to "primary" discrimination. I can see no reason why there should be a different policy as regards disability discrimination and no reason to suppose that the choice to draft by reference to "a disabled person" reflected a deliberate and different policy judgment.[15]As to the actual words required to be interpolated, as the majority in Ghaidan made clear, the drafting is not of the essence (see also Vodafone 2 , at para. 57 (p. 1498)). I also note that the actual decision of the Court of Justice is, more suo , limited to "a situation such as that in the present case" (para. 50 of the judgment) and thus that the answer to the referred question only specifically deals with the case of an employee who is the carer for a disabled child (see para. 56 of the judgment). It could be said, therefore, to be unnecessary for me to follow the Judge's path in promulgating what is, in effect, a re-drafted version of the Act. But it does in fact seem desirable in the present case to attempt to extract from the Directive as interpreted by the Court the relevant general rule and to express it in quasi-statutory language. Both counsel agreed that the Judge's suggested re-drafting was not quite right, principally because the final part of s. 3A (5) on her version refers, inappropriately, to the "abilities" of the "associated person". I think it is easier, if less economical, to embody the position about associative discrimination in distinct provisions. I would thus, if I were re-drafting the statute to give effect to the reasoning of the Court, add to s. 3A a sub-section (5A) in the following terms: (5A) A person also directly discriminates against a person if he treats him less favourably than he treats or would treat another person by reason of the disability of another person. Likewise, I would add to s. 3B a sub-section (3) as follows: (3) A person also subjects a person(a) (A) to harassment where, for a reason which relates to the disability of another person (B), he engages in unwanted conduct which has the purpose or effect of— (a) violating A's dignity, or(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him. Sub-section (2) applies to this sub-section, save that the relevant perception is that of A. S. 4 (1) and (2) could then be adapted by adding, in the introductory words, the phrase underlined below: It is unlawful for an employer to discriminate against a disabled person – or, in a case falling within s. 3 (5A), any person - … . Likewise, s. 4 (3) (a) and (b) would include after, "a disabled person", the phrase "or, in a case falling within s. 3B (3), any person".[16]I appreciate that my formulation does not use the language of "association". Although the phrase "associative discrimination" is a convenient shorthand, on my reading of the decision of the Court of Justice the concept of association is not central to its reasoning. What matters is that the putative victim has suffered adverse treatment on a proscribed "ground", namely disability, and the fact that the disability is not his own is not of the essence: see para. 50 of the judgment, as set out at para. 7 above. In practice it may be uncommon for an employee to be discriminated against on the ground of the disability of anyone with whom he is not in some sense "associated", indeed closely associated, but the fact of such association is not necessary to the unlawfulness; and I should prefer to avoid language which encourages tribunals to become bogged down in discussion of what does or does not amount to an "association", when that should not be the focus of the enquiry. (I should also note that I have used the phrase "by reason that" rather than "on the ground of" purely because it reads less clumsily: the two phrases are interchangeable in this field – see Nagarajan v London Regional Transport [2000] 1 AC 501 , at p. 512 D-E.) 17. I have, in explaining my conclusion, covered most of the points made by Mr Solomon in his thorough and well-presented submissions on behalf of the Appellants. But there are three submissions made by him which I should address specifically.[18]First, he submitted that Ghaidan established that it was not possible to extend the scope of a domestic statute to achieve conformity with EU law where that "would involve a departure from a fundamental feature of the legislation", a phrase which he adopted from the judgment of Arden LJ in IDT Card Services (above - see at paras. 89-90 (p. 1279)), which itself picks up the language of Lord Nicholls at para. 33 in Ghaidan ; and he submitted that it was plainly a fundamental feature of the 1995 Act that it gave rights to, and only to, persons who are themselves disabled. But this only demonstrates the undesirability of fixing on particular phrases rather than gleaning the overall effect of the speeches. In one sense it is indeed true that the disabled status of the putative victim is a fundamental feature of the 1995 Act: the whole Act is, as Mr Solomon emphasised, drafted on that basis. But in another sense it is not true. It could equally be said that the fundamental feature of the Act (as amended by the 2003 Regulations to conform to the Directive) was the proscription of discrimination on the ground of disability, and whether the claimant himself is the person suffering from the disability is inessential: see paras. 14-16 above.[19]Secondly, he referred me to the Report of the Joint Committee which considered the draft bill which became the Disability Discrimination Act 2005, and the materials associated with it. One of the issues which had been considered before the Commission was whether associative discrimination was proscribed as a matter of EU law. The Report records (at para. 102) that the Minister for Disabled People had informed the Disability Rights Commission that he did not believe that associative discrimination was covered by the terms of the Framework Directive. Mr Solomon submitted that that supported the contention that the 1995 Act (as amended by the 2003 Regulations) cannot have been intended to do so either. But the kind of exercise of interpretation explained in Ghaidan does not depend on demonstrating that the legislator – whether Parliament or a Minister exercising his powers under s. 2 of the 1972 Act – positively intended the specific result in question: see, e.g., para. 30 in the speech of Lord Nicholls. Rather, the legislative intent is presumed to be to give effect to EU law (or Convention rights, as the case may be) unless the terms of the legislation are such as to render that presumption impossible. Likewise, the fact that, as Mr Solomon informed me, the Commission and other campaigning groups have sought amendment of the Act so as explicitly to proscribe associative discrimination (and indeed that that is provided for in the current Equality Bill) does not assist. Even if the Act as it stands is capable of being interpreted so as to give effect to EU law, it is plainly desirable that the law is stated clearly and unambiguously.[20]Thirdly, he referred me to the decision of the Court of Appeal in English v Thomas Sanderson Blinds Ltd. [2009] IRLR 206 , and of Burton J. in Equal Opportunities Commission v Secretary of State for Trade and Industry [2007] IRLR 327 , cited with approval by Laws LJ in English at para. 33 (p. 211) (Laws LJ was dissenting, but on their ratio the majority did not have to consider this point). Neither Burton J nor Laws LJ believed that it was possible to read the UK legislation with which they were concerned – in the one case the Sex Discrimination Act 1975 and in the other the Employment Equality (Sexual Orientation) Regulations 2003 – conformably with what was (or was in any event argued to be) the effect of EU law. But the judgments in question are no more than conclusions, right or wrong, on the particular problem in those cases: they do not add to the guidance to be found in Ghaidan .

(B) THE LLOYD-BRIDEN POINT

[21]In Lloyd-Briden v Worthing College an employee who was aged over 65 was dismissed on 2 January 2006 and brought a claim of unfair dismissal. The employment tribunal held that because of his age it had no jurisdiction to hear the claimant's claim of unfair dismissal: see s. 109 (1) (b) of the Employment Rights Act 1996 . That provision is plainly discriminatory on grounds of age, and it was repealed with effect from 1 October 2006 by the Employment Equality (Age) Regulations 2006 ; but it remained in force at the material time. Age discrimination is of course one of the forms of discrimination proscribed by the Framework Directive, and although the extended period of implementation allowed by art. 18 of the Directive (see para. 3 above) did not expire until 2 December 2006 the claimant contended that the tribunal was obliged to disapply s. 109 (1) (b) as a matter of the direct application of EU law: he relied on the (somewhat puzzling) decision of the European Court of Justice in Mangold v Helm [2006] IRLR 143 . Wilkie J., sitting alone in this Tribunal, upheld the decision of the employment tribunal, ruling that the claimant could not rely on the Directive prior to the expiry of the implementation period and that Mangold v Helm , even if correct, was distinguishable. Mr Solomon argued that that ratio applied equally here. He also relied on the decision of the Court of Justice in Centrosteel Srl v Adipol GmbH [2000] 3 CMLR 711 , in which it was held (or at least clearly implied) that the interpretative obligation expounded in Marleasing did not arise until the expiry of the period allowed for giving effect to the directive in question in domestic law: see paras. 16-17 (p. 727).[22]In my view neither Lloyd-Briden nor Centrosteel has any application to the issues before me. The crucial distinction is that in the present case the UK had, at the time of the acts complained of, introduced legislation purportedly implementing the Directive (as regards disability discrimination). We are not therefore concerned with the direct effect of the Directive but with the interpretation of domestic legislation intended to implement it. If the conceptual basis of the exercise required is indeed, in accordance with Ghaidan , the need to give effect to the presumed intention of the legislator when making the 2003 Regulations, i.e. to give full effect to the requirements of the Directive, the " Marleasing obligation" must bite at the moment when those Regulations came into force: it is logically irrelevant that the legislator chose to act rather sooner than he was obliged to. I would also add that it would be bizarre if the (amended) 1995 Act meant one thing on 2 December 2006 but something different on 3 December. (I am not sure that my reasoning on this aspect reproduces that of the Employment Judge, but the issue is one of pure law, and I am concerned with the correctness of the result and not the reasoning.) DISPOSAL[23]The appeal is dismissed. The case is remitted to the Tribunal to consider, at last, the merits of the Claimant's substantive claim.

Cited in 2 later judgments