Appeal No.	 EAT/157/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 February 2002

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT)
MR D J JENKINS MBE
MRS J M MATTHIAS

MR G E WHITTAKER	APPELLANT

(1) P & D WATSON T/A P & M WATSON HAULAGE
(2) THE DEPARTMENT OF EDUCATION & EMPLOYMENT	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MS J BROWN
(of Counsel)
Instructed By:
Messrs Rowley Ashworth 
Solicitors
247 The Broadway
Wimbledon
London SW19 1SE	
For the First Respondent

For the Second Respondent	NO APPEARANCE OR
REPRESENTATION
BY OR ON BEHALF OF 
THE RESPONDENT

MS S MOORE
(of Counsel)
Instructed By:
Office of the Solicitor
Department for Works and Pensions
Department of Health
New Court
48 Carey Street
London WC2A 2LS

MR JUSTICE LINDSAY (PRESIDENT):

1	We have before us, as a full hearing, the appeal of George Edward Whittaker in the matter Whittaker against P & D Watson t/a P & M Watson Haulage; there is now, though, an added, second Respondent, Department of Education and Employment.  The appeal concerns the question of compatibility of the Small Employer Exemption in the Disability Discrimination Act 1995 with Article 6 of the Convention.  

2	Today, Mr Whittaker has appeared by Ms Brown; the Department of Education and Employment by Ms Moore.  The First Respondent, the Haulage Company, the continuing employer, has not appeared.  It takes no part.

3	The history of the matter is that on 25 August 2000 an IT1 was lodged by Mr Whittaker, who is a wagon driver and plant operator.  He had been employed from March 1991 by Watson Haulage and was still employed by them and, as we apprehend, he still is.  His IT1 was for “Failure to pay average holiday pay, failure to make reasonable adjustments and breach of the Disability Discrimination Act”.  We are not concerned with any aspect of his IT1 other than the Disability Discrimination Act claim.

4	Mr Whittaker has a colostomy bag.  He is, to that extent, disabled and, moreover, disabled in such a way that, he says, he cannot drive for very long at a time.  So far as concerns the Disability Discrimination Act claim, he said in his IT1:

“My employer has not made reasonable adjustments to my employment.  On 26 June 2000 my employer would not provide me with any work which I could carry out.  I was unable to travel excess distance because of my disability.  Breach of Disability Discrimination Act 1995 Part II Section 6.”

5	On 4 September 2000 there was an IT3 from the employer.  It said, inter alia, that the employer had done its best to accommodate Mr Whittaker’s needs by giving him lighter duties and the employer said that the incident of 26 June was atypical in that it was not the fact that Mr Whittaker was disabled with a colostomy bag that gave rise to any difficulties that day but rather that on that particular day his stomach was unusually upset. The employer said:

“Just as if any of my drivers were in this predicament, I suggested that he got off home until he felt better.”

6	It is to be noted that the events so far related took place before the Human Rights Act came into effect on 2 October 2000.  

7	On 9 October 2000 there was a procedural step taken which is set out, as follows, in the Appellant’s skeleton argument.  There it is said:

“By letter of 9 October 2000 the First Respondents’ solicitors applied to amend the IT3 by, inter alia, inserting the following paragraph, ‘P & M Haulage has, at most, 6 employees and as such falls well within the small business exemption contained at s7 of the Disability Discrimination Act 1995.  Part 2 s6 (duty of the employer to make reasonable adjustments) does not therefore apply’.  The First Respondents requested a preliminary hearing for the Employment Tribunal to determine whether the small business exemption applied to the First Respondents.”

8	That amendment was presumably granted and on 6 December the matter came before a Chairman alone for hearing .  At that point the only Respondent was the Haulage Company.  On 7 December, with enviable speed, the Chairman’s decision was sent to the parties.  It was the decision of the Tribunal at Leeds, in this case consisting only of the Chairman, Mr D.R. Sneath, and the decision of the Chairman sitting alone was:

“(i)  the Tribunal does not have jurisdiction under the Disability Discrimination Act 1995 to entertain this originating application; and
(b)  the originating application is stayed pending an appeal to any court having power under section 4 of the Human Rights Act 1998 to determine whether section 7 of the Disability Discrimination Act 1995 is incompatible with Articles 6 and 14 of the European Convention on Human Rights.”

Section 7 of the 1995 Act is headed “Exemption for small businesses” and it provides as follows:

“(1)  Nothing in this Part applies in relation to an employer who has fewer than 15 employees.
(2)  The Secretary of State may by order amend subsection (1) by substituting a different number (not greater than 20) for the number for the time being specified there.
(3)  Before making an order under subsection (2) the Secretary of State shall consult -
(a)	the Disability Rights Commission;
(b)	such organisations representing the interests of employers as he considers appropriate; and
(c)	such organisations representing the interests of disabled persons in employment or seeking employment as he considers appropriate.
(4)  The Secretary of State shall, before laying an order under this section before Parliament, publish a summary of the views expressed to him in his consultations.”

That number of 15 was brought down from the original 20 on 1 December 1998:  see the Disability Discrimination (Exception for Small Employers) Order 1998 SI 1998 / 2618.  

9	The employer in the case before us has fewer than 15 employees.  There does not seem to have been any issue about that before the Employment Tribunal and it seems to have been accepted, at any rate for the purposes of argument on 6 December, that the employer here had six employees or fewer.  Equally, there does not seem to have been a dispute about Mr Whittaker’s disability falling within the Act, at any rate, again, for the purposes of the hearing on 6 December.  The Chairman accordingly concluded in his paragraph 4:

“Prima facie, the Employment Tribunal has no jurisdiction to entertain the application.”

10	Then, in an attempt to avoid what was otherwise recognised to be a decisive point against him, Mr Whittaker invoked Article 6 in the Schedule to the Human Rights Act and, by way of that, presumably, Article 14.  He argued that section 7(1) of the Disability Discrimination Act was, prima facie, incompatible with his rights under the Convention and that it could not be construed in any such manner as would be compatible with the Convention.  Therefore, he said, section 7(1) had to be disapplied.  The Chairman at the Employment Tribunal having held, as we have noted, that, prima facie, it had no jurisdiction to deal with Mr Whittaker’s case by reason of section 7, went on, after a careful review of the law in the area, to say:

“My conclusion, therefore, is that there is a reasonable prospect that a designated court would hold that section 7 of the 1995 Act was incompatible with Articles 6 and 14 of the Convention.”

The Chairman continued in his paragraph 24:

“The next question is:  what do I do with these proceedings?  Normally, they would be dismissed because of my finding that the tribunal has no jurisdiction, having regard to the absolute effect of section 7 of the 1996 Act.  Ms Brown invites me to stay this application pending an appeal.  She intends to appeal first to the Employment Appeal Tribunal and then to the Court of Appeal.”

And, after weighing some competing considerations, Mr Sneath said:

“In those circumstances, I accept the argument by analogy with Seymour Smith & Perez and stay this originating application pending the appeals which Ms Brown assures me the applicant intends to pursue.”

11	That indication of an intention to pursue an appeal was made good because on 12 January 2001 the EAT received a Notice of Appeal from Mr Whittaker.  It asserts the incompatibility of section 7(1) with Articles 6 and 14.  But such incompatibility, were it found to exist by us, would not enable the Employment Appeal Tribunal to disapply the primary legislation involved, section 7(1).  The Human Rights Act 1998 at section 3 says:

“(1)  So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”

I do not need to read subsection (2), for immediate purposes.  That gives rise to the question of whether section 7 can be read to be so compatible.

12	In the right forum Mr Whittaker would be entitled to ask for a declaration of incompatibility.  That subject is dealt with in section 4 of the 1998 Act, which reads as follows:

“4(1)  Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
(2)  If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.
(3)  …
(4) If the court is satisfied –
(a)	that the provision is incompatible with a Convention right, and 
(b)	that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility,
it may make a declaration of that incompatibility.”

13	Which, then, are the “courts” that can make a determination of incompatibility and can then move on, in an appropriate case, to make a declaration of incompatibility?  The answer to that is given in section 4(5), which reads as follows:

“(5)  In this section ‘court’ means (a) the House of Lords (b) the Judicial Committee of the Privy Council [(c) and (d) I need not read] (e) in England and Wales or Northern Ireland the High Court or the Court of Appeal.”

Section 4(6) makes it clear that a declaration of incompatibility does not, of itself, affect the validity or the continuing operation of the provision in question and it is not even binding on the parties to the proceedings in which it is made.

14	It is to be noted that that definition of “courts” does not include the Employment Tribunal or the Employment Appeal Tribunal.  The effect is a little odd so far as concerns the EAT because were I to be sitting alone, 500 yards away, in my erstwhile rôle in the Chancery Division, and were a corresponding question to come in front of me, I would be able to make a declaration of incompatibility in an appropriate case.  But here, where I am assisted by a carefully balanced panel to represent both sides of industry, I cannot so decide.

15	It does give rise to some puzzlement as to whether that effect was truly intended.  If the legislature was concerned that the Employment Appeal Tribunal lay members, able to act by a majority, might run amok and decide Human Rights points in a way that no High Court Judge could countenance, then it would have been simple, if that really had been what was feared, to add to the definition of “courts” something on the lines of “the Employment Appeal Tribunal, including a High Court Judge and acting either unanimously or by a majority including that High Court Judge”.  It may be thought right that the odd conclusion that we have drawn attention to should be given some consideration by the legislature.  

16	However, as the legislation stands the Employment Tribunal cannot make a declaration of incompatibility and cannot make a determination of incompatibility such as might lead on to a declaration of incompatibility.  Yet a declaration of incompatibility is what Mr Whittaker ultimately seeks and is the only relief which offers any hope to him.  Even then, though, it is merely a stepping stone, as he would hope, to some change in the legislation.  In the circumstances, so far as the Employment Appeal Tribunal is concerned, the appeal, if not hypothetical, is at least only academic in the sense that the relief which is truly sought is not relief which the Employment Appeal Tribunal can grant.  To take up time and to involve the expenditure of costs in an arid deliberation at the Employment Appeal Tribunal seems to us wasteful.  The Department of Education and Employment says in its skeleton:

“In those circumstances, [and that includes a recital of legislation that we have just gone through] the only course of action open to the EAT is to dismiss this appeal and consider whether to grant the Appellant permission to appeal to the Court of Appeal.”

17	That seems to us to be the appropriate course.  In order to speed the case on towards a court that can effectively deal with the matter in the way that Mr Whittaker would hope, we simply dismiss the appeal without comment but, as we do not see Mr Whittaker’s argument as to Article 6 to be manifestly doomed to fail, we grant permission to Mr Whittaker to appeal to the Court of Appeal.

18	Because the Secretary of State has come in as Second Respondent at a late stage, after the hearing before the Employment Tribunal, it has not yet had a chance to file evidence and we give directions on that subject; the Secretary of State is to serve and file evidence within six weeks from today; Mr Whittaker has four weeks thereafter to answer and then the Secretary of State has a final two weeks to reply.

19	We suggest, subject to whatever comments the Court of Appeal makes when it ultimately deals with the matter, that it would be helpful if the procedure in cases such as this should not involve the expense and delay of an oral hearing but rather that a party seeking, as Mr Whittaker does, a declaration of incompatibility, should have his case at the EAT dealt with on paper only by the President of the day, the President then, in appropriate cases, simply adjourning or dismissing the appeal and giving leave to appeal to the Court of Appeal in the manner in which we have done.  We would not want other parties to have to take up time and spend money in the way that the parties here have and it would be convenient if a process was devised such as we have mentioned but, subject to the comments that we have made, we simply dismiss the appeal and give leave to appeal to the Court of Appeal.