Attridge Law and another v Coleman

EAT: Judge Peter Clark: 20 December 2006

The claimant, who was not herself disabled but was the carer of a disabled son, made a complaint against her employers that she had been discriminated against, for the purposes of sections 3A, 3B and 4 of the Disability Discrimination Act 1995, on the ground of her son's disability. At a pre-hearing review to consider whether the claimant was entitled to bring a claim of disability discrimination based on the concept of associative discrimination, an employment tribunal chairman, without making findings of fact, ordered that the question of whether discrimination by way of association with a disabled person was prohibited by the Equal Treatment Framework Directive 2000/78/EC be referred to the European Court of Justice for a preliminary ruling.

The employers appealed.

Judge Peter Clark held:
(1) An employment tribunal had a discretionary power to make a reference to the Court of Justice under rule 58 of the Employment Tribunals Rules of Procedure 2004 where the question involved the interpretation of a Directive. The discretion was properly exercised where the Directive was not acte clair and the relevant domestic legislation could be read purposively so as to accord with the interpretation advanced. While it was preferable for a case to be referred after all the facts had been found by the domestic court, there was no bar to referring a question on assumed facts where, as in the present case, the matter would otherwise be struck out, and a reference was necessary, not only where it was conclusive of the case, but also where it was required to do justice.

(2) Although on a literal construction of the relevant provisions of the Disability Discrimination Act 1995, the Act was designed to protect those who were disabled from discrimination, the amendments to the Act in 2003 were made to ensure that the Act fully implemented the disability strand of the Framework Directive 2000/78. A national court when applying domestic law, and in particular legislative provisions specifically adopted for the purposes of implementing the requirements of a Directive, was bound to interpret that law as far as possible in the light of the wording and purpose of the Directive to achieve the result sought by the Directive, and the 1995 Act was capable of interpretation consistent with an interpretation of the Directive favourable to the claimant, so as to include associative discrimination, without distorting the words of the Act and consistent with the domestic courts' responsibility to arrive at a construction which ensured that the Directive was fully effective.

The appeal was dismissed.

Appearances: Robert Moretto (Attridge Law) for the employers; Robin Allen QC and Paul Michell (Bates Wells & Braithwaite; Disability Rights Commission) for the claimant