THE INDUSTRIAL TRIBUNALS
    
      CASE REFS:	215/13    
1166/13    

CLAIMANT:	Sandra Cushnan

RESPONDENT:	Norbrook Laboratories Ltd

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the following claims are dismissed for want of jurisdiction:-

(i)	Disability discrimination where it relates to a claim of associative indirect discrimination; and 

(ii)	failure to make reasonable adjustments to accommodate a person associated with a disabled person.

Constitution of Tribunal:

Chairman (sitting alone):		Mrs Ó Murray

Appearances:

The claimant was represented by Miss S Bradley, Barrister-at-Law, instructed by the Equality Commission.

The respondent was represented by Mr J Algazy, Barrister-at-Law, instructed by Mr G McGenity of Norbrook Laboratories Ltd.

1.	There were three issues to be determined at the PHR as set out in the notice of hearing.  It was agreed by both sides that the PHR related to the first claim only, that is, claim bearing reference number 215/13.

2.	Following discussions between the parties Mr Algazy did not object to any amendment application by Ms Bradley in relation to issues 1 and 2.  It was Ms Bradley’s case that the claim did not require amendment but insofar as it did require amendment she applied for amendment of the claim form to include two claims as set out in paragraphs four and six of the draft statement of facts and issues to which I was referred.

3.	Ms Bradley confirmed that the Working Time claim does not include a claim for days owed to the claimant in respect of holidays.  It was agreed that the claim in relation to holidays owed should proceed by way of an unlawful deduction from wages claim.

4.	Ms Bradley also stated that if amendment were required it was no more than relabelling facts already pleaded and, as such, no time point arose.  I granted the amendment on that basis.

5.	I therefore acceded to the amendment application to include the following claims:-

		“(1)	Has the Respondent acted in breach of Regulation 15 of the Working Time Regulations (Northern Ireland) 1998 by requiring the Claimant to take her annual leave in the period from 19th November 2012 to 4th December 2012 without affording her the statutory notice period?

		 (2)	Has the Respondent acted in breach of the Maternity and Parental Leave etc Regulations (Northern Ireland) 1999 by issuing a postponement notice to the Claimant that was not of the same duration as the period specified in the employee’s notice and in refusing to permit the Claimant to parental leave in single days rather than one continuous period?”

6.	Mr Algazy asked for formal note to be taken of his reservation in relation to the costs of the PHR and in relation to costs generally as regards the amendment.  Mr Algazy made clear that no concession was being made as to whether or not the Working Time claim is good in law but it was agreed between the parties that this will be dealt with as part of the substantive case.

7.	The remaining issue which required determination at the hearing was as follows:-

		“(3)	Whether the tribunal has jurisdiction to entertain a claim of indirect discrimination or a claim of a failure to make reasonable adjustments in the circumstances of this case, and in respect of associative disability, contrary to the Disability Discrimination Act 1995 or Council Directive 2000/78?”

8.	Both sides provided very helpful detailed skeleton arguments in advance of the hearing together with lists of authorities.  The skeleton arguments were supplemented by oral submissions at the hearing.  Following consideration of the submissions and authorities I provided a summary decision orally at the conclusion of the PHR on the basis that more detailed reasons would be provided in writing following the hearing.  This approach was agreed to by the parties.

THE LAW

9.	“6.1	Section 4A of the DDA 1995 provides as follows:-

"4A Employers: duty to make adjustments 

(1)	Where -

	(a)	a provision, criterion or practice applied by or on behalf of an employer, or 

	(b)	any physical feature of premises occupied by the employer, 

	places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect. 

(2)	In subsection (1), "the disabled person concerned" means -

	(a)	in the case of a provision, criterion or practice for determining to whom employment should be offered, any disabled person who is, or has notified the employer that he may be, an applicant for that employment; 

		(b)	in any other case, a disabled person who is-

		(i)	an applicant for the employment concerned, or

		(ii)	an employee of the employer concerned. 

(3)	Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know -

	(a)	in the case of an applicant or potential applicant, that the disabled person concerned is or may be, an applicant for the employment; or 

	(b)	in any case, that that person has a disability and is likely to be affected in the way mentioned in subsection (1)." 

10.	Directive 2000/78 establishing a general framework for equal treatment in employment and occupation (“the Framework Directive”) provides as follows:-

		"Article 1 

Purpose 

The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment. 

Article 2 

Concept of discrimination 

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. 

Article 5 

Reasonable accommodation for disabled persons 

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. This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned."  (emphasis added). 

11.	In the Coleman decision [2008] IRLR 722, ECJ, paragraphs 39, 42 and 43 state as follows:-

"39.	It is true that Directive 2000/78 includes a number of provisions which, as is apparent from their very wording, apply only to disabled people. Thus, article 5 provides that, in order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities reasonable accommodation is to be provided. This means that employers must 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. 

42.	Nevertheless, it must be noted in that regard that the provisions referred to in paras 39 and 40 of this judgment relate specifically to disabled persons either because they are provisions concerning positive discrimination measures in favour of disabled persons themselves or because they are specific measures which would be rendered meaningless or could prove to be disproportionate if they were not limited to disabled persons only. Thus, as recitals 16 and 20 in the preamble to the Directive 2000/78 indicate, the measures in question are intended to accommodate the needs of disabled people at the workplace and to adapt the workplace to their disability. Such measures are therefore designed specifically to facilitate and promote the integration of disabled people into the working environment and, for that reasons, can only relate to disabled people and to the obligations incumbent on their employers and, where appropriate, on the Member States with regard to disabled people. 

43.	Therefore, the fact that Directive 2000/78 Includes provisions designed to accommodate specifically the needs of disabled people does not lead to the conclusion that the principle of equal treatment enshrined in that Directive must be interpreted strictly, that is, as prohibiting only direct discrimination on grounds of disability and relating exclusively to disabled people. Furthermore, recital 6 in the preamble to the Directive, concerning the Community Charter of the Fundamental Social Rights of Workers, refers both to the general combating of every form of discrimination and to the need to take appropriate action for the social and economic integration of disabled people."  (emphasis added)

12.	At paragraph 19, the Advocate General sets out the distinction between direct discrimination, harassment and victimisation on the one hand, and indirect discrimination and the duty to make reasonable accommodation on the other:-

		“The Directive prohibits direct discrimination, harassment and indirect discrimination.  The distinguishing feature of direct discrimination and harassment is that they bear a necessary relationship to a particular suspect classification.  The discriminator relies on a suspect classification in order to act in a certain way.  The classification is not a mere contingency but serves as an essential premise of his reasoning.  An employer’s reliance on those suspect grounds is seen by the Community legal order as an evil which must be eradicated.  Therefore, the Directive prohibits the use of those classifications as grounds upon which an employer’s reasoning may be based.  By contrast, in indirect discrimination cases the intentions of the employer and the reasons he has to act or not to act are irrelevant.  In fact, this is the whole point of the prohibition of indirect discrimination: even neutral, innocent or good faith measures and policies adopted with no discriminatory intent whatsoever will be caught if their impact on persons who have a particular characteristic is greater than their impact on other persons.  It is this ‘disparate impact’ of such measures on certain people that is the target of indirect discrimination legislation.  The prohibition of such discrimination ties in with the obligation of employers to accommodate those groups by adopting measures and designing their policies in a way that does not impose a burden on them which is excessive compared with that imposed on other people.  In this way, while the prohibition of direct discrimination and harassment operates as an exclusionary mechanism (by excluding from an employer’s reasoning reliance on certain grounds) the prohibition of indirect discrimination operates as an inclusionary mechanism (by obliging employers to take into account and accommodate the needs of individuals with certain characteristics).  It is for this reason that even if we were to accept the argument of the United Kingdom Government that discrimination by association is clearly outside the scope of the prohibition of indirect discrimination that does not mean in any way that it also falls outside the scope of the prohibition of indirect discrimination and harassment.  On the contrary, including discrimination by association in the scope of the prohibition of direct discrimination and harassment is the natural consequence of the exclusionary mechanism through which the prohibition of this type of discrimination operators.”

13.	The Court did not criticise such a distinction and I infer from its silence on this point that it agreed with the Advocate General’s analysis.

SUBMISSIONS

14.	Ms Bradley agreed that the wording of the domestic legislation was clear on its face in that it does not cover indirect discrimination and does not cover indirect discrimination by association with a disabled person.  Ms Bradley also agreed that on the face of the domestic legislation it was clear that the duty to make reasonable adjustments did not extend to those associated with a disabled person.  Ms Bradley likewise confirmed that the wording of the Directive was clear on its face in that, whilst indirect discrimination was covered, it only covered disabled persons who themselves were subjected to indirect discrimination.  Likewise she agreed that on its face the Directive covered only the duty to make reasonable accommodation in relation to those who possessed the disability rather than covering those associated with individuals with disability.

15.	Against that background, Ms Bradley’s principal submissions were as follows:-

	(1)	The fact that the EU had signed up to the UN Convention on the Rights of Persons with Disabilities meant that the Directive should be read purposively in order to comply with obligations under that Convention.

	(2)	If necessary, the tribunal was empowered, and indeed obliged, to interpolate words into the Directive, if necessary, in order to ensure that associative indirect discrimination and the duty to make reasonable adjustments extended to those associated with a disabled person;

	(3)	Taking this approach was in accord with the principal of equal treatment set out in Article 13 of the EC Treaty;

	(4)	Taking this approach was consistent with the movement of the law in this area as exemplified in the Coleman decision at ECJ and EAT level;

	(5)	The Advocate General and the ECJ were silent on the issue of associative indirect discrimination and that the inference to be drawn from this was that it was not outside the scope of the Directive;

	(6)	The provisions of the Directive are clearly not confined but can extend to those associated with disabled persons;

	(7)	The applicability of the UN Convention and its impact on the ECJ was never addressed by the ECJ before;

	(8)	If the tribunal was not minded to give a purposive interpretation to the Directive to widen the scope of the domestic legislation, then the matter should be referred to Europe for clarification as it was difficult to say that this was “acte clair”;

	(9)	The ECJ has never been asked specifically to interpret Article 5 of the Directive relating to the scope of the reasonable accommodation duty;

	(10)	There have been numerous times when these issues have been raised at IT and EAT level and that this was evidence of the lack of clarity on this point;

	(11)	The fact that Northern Ireland is not covered by the Equality Act which has introduced indirect discrimination, means that the tribunal has more scope to give a purposive interpretation to the Directive and domestic legislation.

16.	Ms Bradley agreed that if the Directive were interpreted strictly and literally there is no protection for someone who alleges indirect discrimination and reasonable adjustment by association but, applying the Coleman approach, there is scope for the Court to interpret it more widely.  Essentially Ms Bradley was asking me to conduct a Coleman exercise but at Directive level by interpolating words to widen its scope to make it compatible with the Convention.  Her submission was that the authority for me to do so derived from the Convention.

17.	Mr Algazy’s principal submissions can be summarised as follows:-

	(1)	The domestic legislation and the Directive clearly do not provide for protection from indirect discrimination by association nor does their scope extend to the duty to make reasonable adjustments for those associated with a disabled person;

	(2)	The surveys referred to by the claimant’s side are irrelevant in the exercise to be performed by the tribunal;

	(3)	The Advocate General’s opinion was followed by the ECJ in Coleman and he drew a clear distinction between those possessing the disability and those associated with a person having a disability.  The distinction related to direct discrimination, harassment and victimisation on the one hand and indirect discrimination and the duty to make reasonable accommodation on the other;

	(4)	The Convention puts obligations on states and is no authority for the proposition that the tribunal can read words into a Directive;

	(5)	There is no power for the tribunal to go behind the words of the Directive and the ECJ judgment to rewrite a Directive;

	(6)	The UN Convention is aspirational and is of a different character to domestic and European law:  at most it could only be used as an aid to interpretation of domestic legislation and, in this case, that was unnecessary given the clear wording of the legislation;

	(7)	In view of the clarity of the wording in the legislation and the Directive there is no need for a reference to Europe as this was acte clair.

CONCLUSIONS

18.	This PHR was arranged by the Vice-President after hearing representations from the parties at a CMD.  The respondent at the CMD was in favour of the PHR being arranged on jurisdiction whilst the claimant’s side was against it.

19.	I kept under consideration the appropriateness of having the PHR and bore in mind the comments of the House of Lords in the SCA Packaging case where the following test was outlined:

		“The essential criterion for deciding whether or not to hold a 
Pre-Hearing Review is whether … there is a succinct knockout point which is capable of being decided after only a relatively short hearing.  This is unlikely to be the case where a preliminary issue cannot be entirely divorced from the merits of the case, or the issue will require the consideration of a substantial body of evidence”.

20.	In this case I was satisfied that it was appropriate for me continue to hear the PHR on the jurisdiction point as it was clear that no evidence would be required and the matter could proceed on legal submissions only.  In addition, it was clear that the hearing would be short and that it would deal with succinct knockout points, the determination of which would have a significant bearing on the extent of the evidence and the length of the substantive hearing.

21.	In order for me to look at the claimant’s case at its height, I asked for clarification from Ms Bradley on whether the claimant claimed direct disability discrimination as well as indirect disability discrimination by association.  It appears that the claimant alleges both direct and indirect discrimination springing from the same factual basis.  I expressed concern that the claimant’s claim for indirect discrimination sprang from the same facts which grounded her claim of direct discrimination.  The two forms of claim are incompatible with each other when they are grounded on the same facts as direct discrimination alleges less favourable treatment whereas indirect discrimination alleges that treating everyone the same has led to disproportionate adverse impact on the claimant’s group.  Nevertheless I felt able to consider the scope of the legislative provisions on the assumption that the claimant could establish the primary facts to ground an indirect discrimination claim.

22.	As this case is a Pre-Hearing Review on jurisdiction, no facts were found in the claimant’s particular case.  The same position pertained in the Coleman claim at tribunal level where the Employment Judge stayed the proceedings before finding material facts and made the reference to the ECJ to clarify the scope of the Directive as regards direct discrimination and harassment.

23.	At ECJ level an issue was raised at admissibility stage by the Netherlands Government whereby it was argued that the claim was inadmissible as all the facts at issue had not yet been established.  The ECJ decision rejected the admissibility challenge and makes clear that the matter was determined on presumed facts stating as follows at paragraph 31:-

		“Where, as here, the court receives a request for interpretation of Community law which is not manifestly unrelated to the reality or the subject-matter of the main proceedings and it has the necessary information in order to give appropriate answers to the questions put to it in relation to the applicability of Directive 2000/78 to those proceedings, it must reply to that request and is not required to consider the facts as presumed by the referring court or tribunal, a presumption which it is for the referring court or tribunal to verify subsequently if that should prove to be necessary (see, to that effect, case C-127/92 Enderby [1993] IRLR 591, paragraph 12).

24.	I am mindful of the fact that it is, in general, undesirable to decide points at a preliminary stage “in a vacuum” without establishing primary facts.  I have however considered the overriding objective and in particular the requirement to avoid unnecessary cost and an unnecessarily lengthy hearing in a case where there is a clear jurisdiction issue.  If the indirect discrimination and failure to make reasonable adjustment claims were to proceed to hearing they would require the hearing to be significantly longer than if those two heads of claim were not included.  They would also require significant further discovery and possibly the analysis of statistics thus increasing the costs involved and probably delaying the substantive hearing.

25.	I was not persuaded by the arguments for the claimant and I find that the tribunal has no jurisdiction to hear the claim of associative indirect discrimination nor has the tribunal jurisdiction to hear a claim for failure to make reasonable adjustments to accommodate the needs of the claimant being a person associated with a disabled person.

26.	The wording of the domestic legislation is clear and there is no provision for indirect discrimination.  The fact that such a provision has been introduced by the Equality Act for Great Britain does not affect the current legislative position in Northern Ireland.  Further, the fact that the Directive refers to indirect discrimination, does not help the claimant in this case where her claim is for associative indirect discrimination.

27.	The duty to make reasonable adjustments is clearly connected to the complainant possessing the protected characteristic.  This is the position in both domestic law and in the Directive.  The rationale for this is clearly set out in the opinion of the Advocated General.  I agree with this analysis.  

28.	Given the clear wording of the domestic legislation and of the Directive I find that this matter is acte clair and does not require a referral to the ECJ.

29.	As the wording of the Directive is clear as regards the claim in this case, I do not have to resort to the UN Convention as an aid to interpreting the Directive, even if I had the power to do so.  I do not accept that I have the power to go behind the wording of the Directive in any event.

30.	I therefore dismiss the claims of associative disability discrimination in respect of the claims of indirect discrimination and failure to make reasonable adjustments.

Chairman:

Date and place of hearing:  2 October 2013, Belfast.

Date decision recorded in register and issued to parties: