UKSC 59
On appeal from:  EWCA Civ 28
X (Appellant) v Mid Sussex Citizens Advice Bureau and another (Respondents)
Lord Neuberger, President
JUDGMENT GIVEN ON
12 December 2012
Heard on 31 October and 1 November 2012
(Instructed by Charles Russell LLP)
Christopher Jeans QC
(Instructed by Bates Wells & Braithwaite LLP)
|Intervener (Secretary of State for Culture, Media and Sport
(Instructed by Treasury Solicitor)
|Intervener (Equality and Human Rights Commission)
Robin Allen QC
(Instructed by Equality and Human Rights Commission)
John Bowers QC
(Instructed by The Christian Institute)
LORD MANCE (with whom Lord Neuberger, Lord Walker, Lady Hale and Lord Wilson agree)
"4 (1) It is unlawful for an employer to discriminate against a disabled person—
"(a) in the arrangements which he makes for the purpose of determining to whom he should offer employment. ….
(2) It is unlawful for an employer to discriminate against a disabled person whom he employs –
(a) in the terms of employment which he affords him;
(b) in the opportunities which he affords him for promotion, a transfer, training or receiving any other benefit;
(c) by refusing to afford him, or deliberately not affording him, any such opportunity; or
(d) by dismissing him, or subjecting him to any other detriment."
"Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation."
Article 19(1) TFEU is in similar terms (with the difference that the Council now acts unanimously in accordance with a special legislative procedure and after obtaining the consent of the Parliament).
"(4) …. Convention No 111 of the International Labour Organisation (ILO) prohibits discrimination in the field of employment and occupation.
(6) The Community Charter of the Fundamental Social Rights of Workers recognises the importance of combating every form of discrimination, including the need to take appropriate action for the social and economic integration of elderly and disabled people.
(7) The EC Treaty includes among its objectives the promotion of coordination between employment policies of the Member States. To this end, a new employment chapter was incorporated in the EC Treaty as a means of developing a coordinated European strategy for employment to promote a skilled, trained and adaptable workforce.
(9) Employment and occupation are key elements in guaranteeing equal opportunities for all and contribute strongly to the full participation of citizens in economic, cultural and social life and to realising their potential.
(11) Discrimination based on religion or belief, disability, age or sexual orientation may undermine the achievement of the objectives of the EC Treaty, in particular the attainment of a high level of employment and social protection, raising the standard of living and the quality of life, economic and social cohesion and solidarity, and the free movement of persons.
(12) To this end, any direct or indirect discrimination based on religion or belief, disability, age or sexual orientation as regards the areas covered by this Directive should be prohibited throughout the Community….
(16) The provision of measures to accommodate the needs of disabled people at the workplace plays an important role in combating discrimination on grounds of disability.
(17) This Directive does not require the recruitment, promotion, maintenance in employment or training of an individual who is not competent, capable and available to perform the essential functions of the post concerned or to undergo the relevant training, without prejudice to the obligation to provide reasonable accommodation for people with disabilities.
(20) Appropriate measures should be provided, i.e. effective and practical measures to adapt the workplace to the disability, for example adapting premises and equipment, patterns of working time, the distribution of tasks or the provision of training or integration resources.
(23) In very limited circumstances, a difference of treatment may be justified where a characteristic related to religion or belief, disability, age or sexual orientation constitutes a genuine and determining occupational requirement, when the objective is legitimate and the requirement is proportionate. Such circumstances should be included in the information provided by the Member States to the Commission.
(27) In its Recommendation 86/379/EEC of 24 July 1986 on the employment of disabled people in the Community, the Council established a guideline framework setting out examples of positive action to promote the employment and training of disabled people, and in its Resolution of 17 June 1999 on equal employment opportunities for people with disabilities, affirmed the importance of giving specific attention inter alia to recruitment, retention, training and lifelong learning with regard to disabled persons.
(37) In accordance with the principle of subsidiarity set out in Article 5 of the EC Treaty, the objective of this Directive, namely the creation within the Community of a level playing-field as regards equality in employment and occupation, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and impact of the action, be better achieved at Community level. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective."
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.
Concept of discrimination
[Defines the concept]
1. Within the limits of the areas of competence conferred on the Community, this Directive shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to:
(a) conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion;
(b) access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience;
(c) employment and working conditions, including dismissals and pay;
(d) membership of, and involvement in, an organisation of workers or employers, or any organisation whose members carry on a particular profession, including the benefits provided for by such organisations.
Member States shall take the necessary measures to ensure that:
(a) any laws, regulations and administrative provisions contrary to the principle of equal treatment are abolished;
(b) any provisions contrary to the principle of equal treatment which are included in contracts or collective agreements, internal rules of undertakings or rules governing the independent occupations and professions and workers' and employers' organisations are, or may be, declared null and void or are amended."
Employment and occupation
"The discriminatory grounds covered by this proposal coincide with those laid down by Article 13 of the Treaty with the exception of the ground of sex. Such an exclusion has a twofold justification. First, the appropriate legal basis for Community legislation on equal opportunities and equal treatment of men and women in matters of occupation and employment is Article 141 of the Treaty. Secondly, Council Directives 76/207/EEC and 86/613/EEC have already established the principle of equality of treatment between men and women in this field."
"67. For the purposes of that provision, there must be considered as a worker a person who, for a certain period of time, performs services for and under the direction of another person in return for which he receives remuneration (see, in relation to free movement of workers, in particular Lawrie-Blum v Land Baden-Württemberg (Case 66/85)  ICR 483, 488, para 17, and Martínez Sala, para 32).
"16. …. The concept of a 'worker' must be interpreted broadly: Levin v Staatssecretaris van Justitie (Case 53/81)  ECR 1035).
17. That concept must be defined in accordance with objective criteria which distinguish the employment relationship by reference to the rights and duties of the persons concerned. The essential feature of an employment relationship, however, is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration."
"In order to be treated as a worker, a person must nevertheless pursue an activity which is effective and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and accessory (see, in particular, Levin Case 53/81, paragraph 17, and Meeusen Case 337/97, paragraph 13)."
"Occupation is the carrying out of a real and genuine activity which is more than marginal in its impact upon the person or entity for whom such activity is carried out and which is not carried out for remuneration or under any contract."
Before the Supreme Court, she submitted in her Case that
"a pursuit or activity on which a person is habitually engaged can constitute an occupation, and to be occupied simply means to be busy or engaged on a pursuit or an activity"
and that the scope of the Directive
"includes persons who have an occupation which is not remunerated, so long as that activity is not merely 'marginal' or simply the following of a hobby or lending of an occasional kindly hand, and/or (b) comes within the scope of the policy of the EU and UK legislation as something which, if excluded from protection, would create an unacceptable lacuna in the protection intended for workers."
"(e) social protection, including social security and healthcare;
(f) social advantages;
(h) access to and supply of goods and services which are available to the public, including housing."
"Directive 2002/73/EC broadened the scope of Directive 76/207/EEC, in particular by prohibiting discrimination in the conditions governing access to self-employment and membership of and involvement in workers' or employers' organisations or any organisations whose members carry on a particular profession, including access to the benefits such organisations provide (Article 3(l)(a) and (d)). The problems in transposing those provisions in some Member States have consisted mainly in a failure to include self-employment and membership of and involvement in workers' or employers' organisations among the areas covered by the prohibition on discrimination."
"the expression 'access . . . to self-employment or to occupation' means what it says and is concerned with preventing discrimination from qualifying or setting up as a solicitor, plumber, greengrocer or arbitrator. It is not concerned with discrimination by a customer who prefers to contract with one of their competitors once they have set up in business. That would not be denying them 'access. . . to self-employment or to occupation'."
"les conditions d'accès à l'emploi, aux activités non salariées ou au travail, y compris les critères de sélection et les conditions de recrutement, quelle que soit la branche d'activité et à tous les niveaux de la hiérarchie professionnelle, y compris en matière de promotion;"
"Cet article identifie les domaines régis par la proposition, à savoir l'accès à un emploi ou profession, la promotion, la formation professionnelle, les conditions de travail et l'affiliation à certains organismes. "
"Travail" and "profession" are thus equated. In the Spanish and Dutch versions, the phrase "or to occupation" appears as "y al ejercicio profesional" and "en tot een beroep", referring to a profession or professional activity. In the German, article 3(1)(a) reads simply (and inconsistently with the suggestion that voluntary activity was contemplated):
"die Bedingungen — einschliesslich Auswahlkriterien und Einstellungsbedingungen — für den Zugang zu unselbständiger und selbständiger Erwerbstätigkeit, unabhängig von Tätigkeitsfeld und beruflicher Position, einschliesslich des beruflichen Aufstiegs."
"The conditions – including selection criteria and recruitment conditions – for access to dependant [employed] as well as independent remunerative activity, whatever the branch of activity and professional position, including promotion."
"It has been argued that there is an overlap in this title in that 'occupation' is only a specific aspect of 'employment'. However, it is clear that the intention of the [UN] Subcommission was to direct special attention to an important aspect of the subject, namely discrimination affecting the individual's free choice of occupation. For this reason there appears to be value in retaining the words 'and occupation' and the Conference Committee rejected an amendment to delete these words.
Considerable attention to terminological concepts such as 'employment' and 'occupation' has been given by successive International Conferences of Labour Statisticians and the summary of their more recent conclusions on these points may be of guidance to governments.
At the Eighth International Conference of Labour Statisticians it was decided that 'persons in employment' included all persons above a specified age who were 'at work' and that the phrase 'at work' included not only persons whose status was that of employee but also those whose status was that of 'worker on own account', 'employer' or 'unpaid family worker'.
The meaning attached by the Seventh International Conference of Labour Statisticians to the word 'occupation' was 'the trade, profession or type of work performed by the individual, irrespective of the branch of economic activity to which he is attached or of his industrial status'.
It will be seen, therefore, that at the international level both words have a comprehensive meaning and that they apply to all persons at work. It appears in connection with this subject that this would coincide with the original views of the [UN] Subcommission when the ILO was invited to deal with the subject."
"The Representative of the Secretary-General explained that the purpose of the use of the two words 'employment' and 'occupation' in the description of the subject was to stress that it was not enough to ensure non-discrimination in access to employment but was also necessary to ensure the individual a free choice of occupation; it had been the intention of the Office to include self-employed workers since it would hardly seem right for a Convention to deal solely with the elimination of discrimination in access to wage-earning employment and not give to workers wishing to be self-employed any protection against laws, regulations or practices arbitrarily preventing them from doing so..."
"The fact that the material scope of the provisions planned covers not only salaried employment but also self-employment and the liberal professions and that its scope rationae [sic] personae is not limited to persons excluded from the labour market, excludes recourse to Article 137 (2) of the Treaty.
Under the Commissions original proposal, article 3(1)(a) (Material scope) would have read:
"This Directive shall apply to:
(a) conditions for access to employment, self-employment and occupation, including selection criteria and recruitment conditions, whatever the sector or branch or activity and at all levels of the professional hierarchy, including promotion;"
"(a) conditions for access to employment, unpaid and voluntary work, official duties, self-employment and occupation, including selection criteria and recruitment conditions, finding of employment by public and private employment agencies and authorities, whatever the sector or branch of activity and at all levels of the professional hierarchy, including promotion;" (added words italicised)
It gave as the justification that:
"Official duties, unpaid and voluntary work should likewise fall within the scope of this directive. It would not be right for official (i.e. public) duties to become a separate field of application: they should be covered by the definition of the term 'employment'." (A5-0264/2000 final, p 20)
"This Directive shall apply to all persons in both the public and private sectors, including public authorities, with regard to:
(a) conditions for access to employment, self-employment and occupation, unpaid or voluntary work including selection criteria and recruitment conditions, whatever the sector or branch of activity and at all levels of the professional hierarchy, including promotion;
(b) access to all types and to all levels, of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience;" (added words italicised)
In an Explanatory Memorandum, the Commission described such amendments as involving:
"Clarification of the material scope of the proposal, indicating that it covers both the public and private sectors, including public authorities. It is also stated that the proposal also applies to unpaid or voluntary work and practical training ….".
A reference to the Court of Justice?
"16 Finally, the correct application of Community law may be so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved. Before it comes to the conclusion that such is the case, the national court or tribunal must be convinced that the matter is equally obvious to the courts of the other Member States and to the Court of Justice. Only if those conditions are satisfied, may the national court or tribunal refrain from submitting the question to the Court of Justice and take upon itself the responsibility for resolving it.
17 However, the existence of such a possibility must be assessed on the basis of the characteristic features of Community law and the particular difficulties to which its interpretation gives rise.
18 To begin with, it must be borne in mind that Community legislation is drafted in several languages and that the different language versions are all equally authentic. An interpretation of a provision of Community law thus involves a comparison of the different language versions."
"…. EC directive 2000/78 covers 'the conditions governing access to employment, non-salaried activities or work'. By means of this expression the Community legislator sought to prohibit any discrimination based on religion or convictions, and in particular with regard to access to unpaid or voluntary activities."
"any discrimination, direct or indirect, based on ... age ….is forbidden …. in the area …. of work, including casual/self-employed or non-salaried work ....".
HALDE, after saying that this law must be interpreted in light of the Framework Directive, continued (in translation):
"Now, according to the preparatory work [travaux préparatoires], the Community legislator understood the term work ["travail"] in a broad sense, in order to cover salaried activities, non-salaried and casual/self-employed activities and voluntary activities."
"les conditions d'accès au travail salarié, non salarié ou indépendant, y compris les critères de sélection et les conditions de recrutement, quelle que soit la branche d'activité et à tous les niveaux de la hiérarchie professionnelle, y compris en matière de promotion, les conditions d'emploi et de travail, y compris les conditions de licenciement et de rémunération, tant dans le secteur privé que public;
la nomination ou la promotion d'un fonctionnaire ou l'affectation d'un fonctionnaire à un service;
la mention dans un pièce officielle ou dans un procès-verbal; …
l'accès, la participation et tout autre exercice d'une activité économique, sociale, culturelle ou politique accessible au public."
"En ce qui concerne la relation de travail, la présente loi s'applique, entre autres, mais pas exclusivement, aux : 1°conditions pour l'accès à l'emploi, y compris entre autres, mais pas exclusivement : -les offres d'emploi ou les annonces d'emploi et de possibilités de promotion, et ceci indépendamment de la façon dont celles-ci sont publiées ou diffusées; -la fixation et l'application des critères de sélection et des voies de sélection utilisés dans le processus de recrutement; -la fixation et l'application des critères de recrutement utilisés lors du recrutement ou de la nomination; -la fixation et l'application des critères utilisés lors de la promotion; -l'affiliation en tant qu'associé à des sociétés ou associations de professions indépendantes."
Nothing in this text expressly covers voluntary activity, but the Projet de loi stated that:
"Le champ d'application ne vise pas seulement le travail salarié, mais également le travail indépendant et le bénévolat".