* United Kingdom, Employment Appeal Tribunal, 16 August 2019 UKEAT/0291/18/BA
Employment Appeal Tribunal
* United Kingdom
National case details
Registration ID: UKEAT/0291/18/BA
Instance: Appellate on fact and law
Case status: Final
Area of law
Safeguards for access to justice
In judicial dialogueJudgement of the CJEU Case C-363/12 Z. v A Government department and The Board of management of a community school, Case C-395/15 Mohamed Daouidi v Bootes Plus SL and Others
23 February 2018
Judgment of the Employment Tribunal
16 August 2019
Judgement, Employment Appeal Tribunal
Identification of the case
- Non-discrimination (art. 21 CFREU)
- Right to an effective remedy and to a fair trial (art. 47 CFREU)
- Equality Act 2010
- Directive 2000/78
- Charter of Fundamental Rights of the European Union
Summary of the case
The Claimant was a social worker employed by the Respondent from December 2008 until he was dismissed with effect on 15 May 2017. The reason given by the respondent at the time of the claimant’s dismissal was capability. Following this, the Claimant presented a claim to the Employment Tribunal complaining of treatment over a number of years, and in respect of the dismissal. The Claimant argued that he was a person with disabilities for the purposes of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) and therefore the Equality Act 2010 and EU Directive 2000/78 as read in the light of the CRPD. This was due to suffering from either depression, anxiety, dysexecutive syndrome or sleep apnoea, and sometimes all of them, at all times material to the case as well as a ‘disposition to long-term impairments of sleep apnoea and depression in the future’. The Respondent denied that there had been any unlawful discrimination and asserted that the Claimant had been fairly dismissed for a reason related to capability arising from long-term ill health. In the decision of the Employment Tribunal, the judge found that the national CPRD was not incorporated into UK law and did not provide the Claimant with a route to claim for disability discrimination outside of the Equality Act 2010, to which he claimed to have been subjected. The Claimant appealed to the Employment Appeal Tribunal, partially on the judge had erred in finding that the CPRD did not have direct effect in the UK.
- Administrative judicial enforcement
Finding of discrimination.
In reiterating that the CRPD has indirect effect in the UK, the appeal tribunal referred, as the Claimant had done, to the CJEU’s judgment in Daouidi, C- 395/15. The Tribunal noted that ‘it has been clearly held by the CJEU that the CRPD may be relied upon for the purposes of interpreting [Directive 2000/78] which must, so far as possible, be interpreted in a manner consistent with it.’
Consequently, the Claimant was able to seek to rely on any provision of the CRPD as ‘having a bearing, by any of the techniques which may be deployed, in accordance with the Marleasing jurisprudence, on the interpretation of any relevant provision’ of the Equality Act (paragraph 42).
In determining whether the CRPD has direct effect in the United Kingdom, the appeal tribunal referred to the CJEU’s judgment in Z v A Government Department, C-363/12, in which the Court held that “it must be held that the provisions of [the CRPD] are not, as regards their content, provisions that are unconditional and sufficiently precise within the meaning of’ the Court’s previous case law on the matter, to have direct effect in European Union law. The appeal tribunal judge found against the Claimant and upheld the decision of the Employment Tribunal that the CRPD does not have direct effect in the UK.
Role of the Charter and role of the general principles on enforcement
The Claimant argued that if the CRPD were not given direct effect, his right to a fair trial under Article 47 CFREU would be violated. The judge dismissed these arguments.
- Explicit reference to Art. 47, CFREU (right to an effective remedy and a fair trial)
- Right to a fair trial
- Explicit reference to Art. 6 ECHR
Section 6(1) Equality Act 2010 defines ‘disability’: (1)A person (P) has a disability if— (a)P has a physical or mental impairment, and (b)the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.
The Claimant argued that his right to a fair trial under Article 6 ECHR and Article 47 would be violated if he could not directly rely on the CRPD to claim that he had been subject to discriminatory treatment on the basis of his disability that was not prohibited by Directive 2000/78 and the Equality Act 2010.
Elements of judicial dialogue
- Dialogue among same level national courts within the same Member State
- Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)
- Dialogue between high court - lower instance court at national level
- CJEU C-363/12, Z.
- CJEU C-395/15, Daouidi
Conform interpretation with EU law as interpreted by the CJEU.
To determine whether the CRPD has indirect and direct effect in the United Kingdom.