United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR B NAPIER One of Her Majesty's Counsel Instructed by: Messrs Field Fisher Waterhouse Solicitors 35 Vine Street London EC3N 2AA
For the Respondent	MR D O'DEMPSEY (of Counsel) Instructed by: Free Representation Unit


 


THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

1. This is an appeal by the Respondent, a set of barristers' Chambers, 1 Pump Court, against the unanimous Decision of the Employment Tribunal at London Central in favour of the Applicant, Mr Horton, at a preliminary hearing that the Applicant may pursue his claim of disability discrimination against the Respondent, pursuant to section 13 of the Disability Discrimination Act 1995, the DDA.
2. The questions in issue - of which, as will be clear, there have been two - both revolve around the construction of section 13 of the DDA, which in material part reads as follows:

"13. (1) It is unlawful for a trade organisation to discriminate against a disabled person-

(a) in the terms on which it is prepared to admit him to membership of the organisation; or
(b) by refusing to accept, or deliberately not accepting, his application for membership.

….

(4) In this section "trade organisation" means an organisation of workers, an organisation of employers or any other organisation whose members carry on a particular profession or trade for the purposes of which the organisation exists."


3. The facts underlying the case, which of course for the purpose of the preliminary hearing were not in issue, because they were based on the claim made by the Applicant, are set out in paragraph 1 of the Employment Tribunal's Decision, which reads as follows:

"….. Mr Horton is a mature student who applied for pupillage with the Respondent"

Pupillage, of course, being a well-known expression so far as the Bar is concerned, referring to a trainee barrister.

"and was offered one of two available places for the term commencing in October 2001. In September 2001 Mr Horton informed the Respondent that he would not be able to take up the pupillage post offered to him because of ill health. He applied to the Respondent for a postponement of his pupillage so that it would begin in October 2002 by which time he hoped to be fit enough to take it up. The Respondent decided for reasons which are set out in the Notice of Appearance and are not relevant to this hearing, not to grant him a deferral, and effectively that would prevent him from taking pupillage with the Respondent. Mr Horton initiated proceedings in the Employment Tribunal on 1 March 2002 claiming disability discrimination in contravention of section 5(2) and section 6(1) of the DDA. The Respondent has now conceded that Mr Horton has a disability and is a disabled person within the meaning of section 1 DDA, but as the arrangement between Mr Horton and the Respondent would be a contract for education and training, together with the assertion that the Respondent comprised less than fifteen employees, Mr Horton had to amend his claim so as to bring it under section 13 of the Act which deals with discrimination by trade organisations. Mr Horton alleges that the Respondent is a trade organisation within the meaning of section 13(4) and that his application for membership was refused under section 13(1)(b)."

4. The two issues were both resolved by the Employment Tribunal in favour of the Applicant. The same Counsel who had appeared and presented the matter on paper and orally very ably before us, namely Mr Napier QC, for the Appellants, the Respondents below, and Mr O'Dempsey of Counsel, on behalf of the Applicant both here and below, have argued the appeal before us.
5. Both parties have trailed before us the usual suspects by way of purple passages in the area of statutory construction. On the one side, there are ranged by the Applicant those passages which support the proposition that statutes in the area of social policy should be construed in favour of the purposes of that policy, and, as Lord Diplock has put it, purposively. Those authorities are Jones -v-Hudson [1972] 2 WLR 210 at page 251 per Lord Diplock, Jones -v- Tower Boot Company Ltd [1997] ICR 254 at 261 per Waite LJ, and Goodwin -v - The Patent Office [1999] ICR 302 at 307 per Morison P.
6. On the other side, ranged by the Appellants, there have been those passages which emphasise the importance that Courts should not stretch statutory construction in order to fill lacunae which have been left by Parliament, and those passages are in the Royal College of Nursing of the UK -v- Department of Health and Social Security [1981] AC 800 at 822 per Lord Wilberforce; in Fitzpatrick -v- Sterling Housing Association Ltd [2001] 1 AC 27 at 33 per Lord Slynn of Hadley, and in Rhys-Harper -v- Relaxion Group plc [2003] IRLR 484 at paragraph 78 per Lord Hope of Craighead. Mr Napier QC accepts that the Court is entitled and obliged to adopt a purposive construction, but he emphasises the obligation of the Court not to distort a statute in order to achieve that end.
7. We should clear out of the way two matters, which have become almost common ground. First, the Respondent Chambers has applied successfully to become recognised, for revenue purposes, as a trade protection association. This is relied upon by the Employment Tribunal at paragraph 7 of its Decision, as evidence of the Respondents effectively blowing hot and cold. The Tribunal said as follows:

"…. Mr Napier invites us to ignore [it] but we consider that [it is] relevant; if the members of chambers decide to apply for treatment as a trade protection association in one context that is favourable to them from a tax point of view, why should they argue that they are not trade organisations within another context which is perhaps not so favourable?"

8. Mr O'Dempsey does not encourage us to follow the same line, and it is plain that there is no question here of any kind of estoppel against the Respondent. The test is different for revenue purposes, which indeed is extra-statutory in any event, from that which is required for the construction of the discrimination legislation. The only relevance is that it is clear, and in any event would be clear, that the Chambers are an association of barristers engaged together in the profession of the Bar. The question is whether they are a trade organisation within section 13(4) of the DDA or not.
9. Secondly, there has been some consideration of the legislative history. In 1991 both the race and sex discrimination legislative provisions were amended so as to include a special section dealing with discrimination by barristers against applicants for pupillage or tenancy, as the Bar describes the membership of Chambers. Section 26A of the Race Relations Act and section 35A of the Sex Discrimination Act both deal expressly with that position. It is suggested by the Appellants that that shows that the equivalent sections, which there are, in both those two statutes to section 13 of the DDA cannot have been thought to cover such a situation, otherwise there would have been no need for that specific provision .
10. So much for the starting point, but the history becomes more tortuous. When the DDA itself was introduced in 1995, no similar section to sections 26A and 34A was introduced in the DDA, which has section 13 alone, as a potential cover for discrimination in that area. It is therefore urged by the Applicant that this suggests that it was thought clear that the discrimination in such a situation was effectively covered by section 13, and that it was therefore unnecessary to have any such separate section as was included in the other two statutes. The worm turns once again because it is now intended, we understand, that the DDA is now to be amended so as to include what is anticipated to be an identical provision to sections 26A and 35A into the DDA as from October 2004, which may be said rather to argue for the proposition that the present section does not cover the position, although, of course, Mr O'Dempsey would argue that the new section is intended for the avoidance of doubt.
11. In our judgment, such speculations are purposeless, at any rate in this case. The only sound starting point that we can look to is that if in fact the present legislation does not cover discrimination in the field with which we are dealing, then it will so cover it in October 2004, which would be a comfort for those who are in the Applicant's present position, if there is no remedy at present, and, of course, a comfort to this Tribunal similarly.
12. We turn to the first issue, the question of trade organisations. The overall point, which Mr Napier QC urges, is that a trade organisation, as defined by section 13, is and only is an organisation whose primary purpose is the promoting or protection of the profession as a whole. We shall read again section 13(4), eliminating from it references to organisations of workers or employers which it is accepted, at any rate for the purposes of this appeal, are irrelevant. What we therefore have to decide is whether the barristers' Chambers in this case fall within the definition of a trade organisation, where a trade organisation is defined as:

"an organisation whose members carry on a particular profession or trade for the purposes of which the organisation exists."


The profession, of course, in this case being the Bar or the barristers' profession. Mr Napier QC submits that the only body which can be a trade organisation is one which exists for the purposes of promoting the Bar or barristers generally. Mr O'Dempsey submits that the words do not fall to be so construed.

13. The following matters have been canvassed before us. First there has been reference by Mr O'Dempsey to the case of Aziz -v- Trinity Street Taxis Ltd [1988] ICR 534, a decision of the Court of Appeal In that case the complainant was a taxi cab proprietor of Asian origin and a member of an association of taxi cab operators who was complaining about alleged discrimination by that association. The case in the Court of Appeal revolved round the issue as to whether the act done was an act of discrimination. If it had ever been in issue as to whether the association of taxi cab operators was a trade organisation, it no longer was in the Court of Appeal and it is thus, therefore, of no assistance so far as being any kind of binding precedent on us is concerned. At best it can be used as an example by Mr O'Dempsey of an association which was, it seems, local and contained a number of owners and operators of taxi cabs who will primarily have been looking after their own interests by being members of a collective group, and no-one, if the matter ever was contested at all, appears to have suggested that it was not a trade organisation, and perhaps it was taken for granted that it was. For those reasons it is obviously no more than a very broad illustration of the very dispute that we now have to resolve and takes the matter no further.
14. Secondly, Mr O'Dempsey draws our attention to the Code of Practice on the duties of trade organisations to their disabled members and applicants which was issued by the Secretary of State for Education and Employment under section 3 of the DDA in 1999. In that Code of Practice, to which of course this Tribunal is entitled to have regard, there is a definition of a trade organisation which is slightly wider than that in the Act, and it reads as follows, under the heading "What is a trade organisation?"

"2.1 A trade organisation is defined as an organisation of workers or of employers, or any other organisation whose members carry on a particular profession or trade for the purposes of which the organisation exists. Bodies like trade unions, employers' associations, the Law Society and chartered professional institutions are all trade organisations because they exist for the purposes of the profession or trade which their members carry on. Part II of the Act exempts some employers according to the number of people they employ. Trade organisations are subject to sections 13 to 15 of the Act, however many members they may have."

It is of course right to say that that paragraph does not use the words upon which Mr Napier QC would wish to rely, namely the profession "as a whole", but the examples of the trade organisations that are there given are of that kind of institution. On the other hand, Mr O'Dempsey points to the fact that such organisations can qualify, even if they have very few members indeed, which argues against all organisations being required to be of the kind which covers a total profession. This, too, does nothing more than function as a starting point and provide ammunition available for both sides.

15. The meat of the argument begins with Mr Napier QC's reliance on the case of General Medical Council -v- Miss Cox, delivered by Holland J on 22 March 2002 EAT/71/01 (unreported). The issue there was whether the GMC, the General Medical Council, was a trade organisation within section 13(4) and the central paragraph in which Mr Holland J's reasoning and conclusion is set out is at paragraph 16.

"Is the GMC a trade organisation within the meaning of Section 13? In our judgment it is beyond argument that that at its inception the purpose for which this organisation existed was the protection of the public, and particularly those members of such that had to consult a medical practitioner. The preamble to the 1858 Act said as much and it would be surprising if Parliament of its own volition made an enactment for the purposes of the medical profession. Has the position since changed? We think not. The functions of the GMC are to be those assigned by the Medical Act 1983 (see Section 1(1)), which functions, as emerging from the ensuing sections, are in great substance directly or indirectly concerned with setting and attaining the professional standards that serve to protect the public. We readily accept Mr. Henshaw's submission that the activities of the GMC serve to maintain the status and reputation of the medical profession and are thus of a benefit to it but that consideration cannot serve to displace the predominant purpose of public protection. Indeed if the medical profession, as such, does benefit from the GMC and its functioning it is arguably because this organisation does not exist for its 'purpose' but for the 'purpose' of the public, setting standards that are not compromised by self-interest."

16. Mr Napier QC relies on that to support and establish the proposition that what we should look for is the predominant purpose of the body which is said to be a trade organisation. It is plain that in that case the GMC was held to have the predominant purpose of protection of the public and not to have been predominantly, or perhaps at all, for the purposes of the medical profession, or those who carried on the medical profession.
17. Mr Napier QC submits that if the same test is applied here, the setting up of Chambers and the joining of Chambers by those barristers who practise within it, is primarily or predominantly for the self interest of the individual members to enable them to carry on their livelihood, and not for the purpose of the profession as a whole, which, as we have indicated, he submits to be the purpose of a trade organisation as defined. It is apparent that he is, and Mr O'Dempsey does not suggest he is not, right in his analysis of Cox; but the issue is whether the dichotomy which plainly exists in that case between the protection of the public and the purposes of the profession can be extended further to provide a relevant distinction in this case.
18. We turn then to the question of construction of the statute by what Mr Napier QC referred to as the linguistic argument, as being, in the light of and notwithstanding all the other matters both as set out in this judgment, and as we have read in skeleton form and heard orally, the central question.
19. We conclude that it is too narrow a construction of the section to read it as limiting the purposes of the profession to the purposes of the profession as a whole. Section 13(4), which defines "trade organisation", is not easy to construe, but that does not mean that it should be construed narrowly; indeed, it is the more likely that it should be construed for the purpose of extending rather than limiting the protection that it gives. We see no place for the incorporation into this section of the words "as a whole". We entirely agree with Mr Napier QC when he emphasises the use of the word which, namely "for the purposes of which the organisation exists". The words are not "for the purposes of whom the organisation exists", and thus it cannot be suggested, nor does Mr O'Dempsey suggest it, that an organisation whose members carry on a particular profession for the purposes of whom the organisation exists, i.e. the organisation being for the purposes of the members, would qualify as a trade organisation.
20. It may be, however, that the word "which" refers to the "carrying on of the profession", and if that is right then it is plainly the case that the Chambers, whose members carry on the particular profession, namely the profession of barristers, exist "for the purpose of carrying on the profession" of barristers. Mr Napier QC, however, urges us to say that the word "which" does not refer to the verb "carry on", although it plainly could do so, but to the word "profession", and therefore it should be limited to the construction which asks the question whether the Chambers exists for the purposes of the profession, and he submits that it does not. Whichever of those two constructions is right, and because, in our judgment, the words are wide enough to cover both, in our judgment the Chambers do exist for either such purpose, and even if the construction for which Mr Napier QC contends is the correct one, namely that the word "which" is a reference to the profession, we are entirely satisfied that the Chambers exist for the purposes of the profession.
21. This is plainly so where barristers have in fact joined Chambers in order to practise as barristers, and thus to carry on their profession. As we understand the position, in any event the profession requires, at least for the first three years, that barristers in independent practice must be members of a Chambers, so that membership would thus be for the purposes of the profession, and even apart from the first three years, it is plain that this, the organisation of barristers in Chambers, which is almost invariable, is the way in which the practice as a barrister is facilitated, and joining Chambers is, in our judgment, plainly for the purposes of the profession, on any pragmatic view. We see no reason to construe the section more narrowly.
22. Of course, it is right that the barristers gather together in groups in order to save money, to share the expenses and to obtain insurance cover, and the best way of being able to obtain work from solicitors is to be able to offer a wide choice of practitioners and practices to solicitors or clients who wish to instruct the Chambers; but, albeit that that is their purpose, their purpose is to do so, namely to save money and to act cost effectively, for the purpose of carrying out their profession of barristers.
23. Returning to Cox, we can entirely see that if, for example, barristers collected together for the purposes of a charity, such as, for example, looking after aged or distressed barristers or their families, then they would, albeit collected together, not be an organisation for the purposes of the carrying out the profession, or for the purposes of the profession, but they would have a charitable purpose which would fall into a different category, just as the purpose of the GMC was held to be different in the Cox case. But we are entirely satisfied that, on any sensible reading of section 13(4), a trade organisation covers the example of a barristers' set of Chambers. We therefore agree with the Decision of the Employment Tribunal in this regard.
24. We turn to the second issue, whether a pupil, a trainee barrister is, whether on the facts of this case or at all, a member of Chambers, or whether an application for pupillage is an application for membership of Chambers. As we indicated earlier in this judgment, there is a well established practice that a member of Chambers, as defined by the Chambers themselves, is a tenant; he is called a tenant because he pays rent, and whether that gives him any interest or any tenure depends of course on the terms of his relationship both with the other members of his Chambers and with the landlord of the property which the Chambers inhabit.
25. But there is a well established difference between a trainee who hopes to be taken on, either in the Chambers in which he is training or another set of Chambers, or may be using his period of pupillage to acquire experience and knowledge either with a view to going into another profession, or, if that is not his aim, because if he does not succeed in obtaining a tenancy anywhere, that may be the result. Applications for pupillage are regarded and treated differently from applications to become a tenant, albeit that those who are already pupils in the Chambers may have a better chance of success, because better known, when they come to make their application for a tenancy.
26. Mr O'Dempsey submits that, albeit not defined, either by well established practice, or, as we shall describe, by the constitution of this particular Chambers, as a member, nevertheless a pupil becomes a kind of member and has a participation which is sufficient to enable him or her to be described as a member of the Chambers, a lesser membership, a more temporary membership, but nevertheless a membership; and he refers to and supports the conclusion of the Employment Tribunal in his favour.
27. The Employment Tribunal seems of its own motion to have referred to the Shorter Oxford Dictionary and we quote from paragraph 9 of the Decision as follows:

"Although it was not put to us, we have taken the liberty of looking for the definition of "member" and "membership" in the Shorter Oxford Dictionary. There are numerous definitions of the first word, but the only one relevant for our purpose is as follows -

"Each individual belonging to a society or assembly …….. one who takes part in anything"

It is, perhaps, not entirely helpful that that describes only one out of many other possible definitions, but nevertheless, there it is. It continues:

"Membership is defined as "The condition or status of being a member of a society etc" "

28. The Tribunal directed itself that it did not believe that the terms "member" and "membership" in the context of section 13 were terms of art, and that it therefore must give those words their normal meaning according to general use in the English language. It looked at the different categories of people who took part in Chambers, not only the members of Chambers as defined in the Respondent's constitution, but also the employees, the pupils and then the small category of people who have been pupils and had not been taken on as a tenant and had not yet found anywhere else to go, who might be allowed to stay on as what is colloquially called squatters; and, having looked at each one of those categories, concluded that, so far as pupils were concerned, they were properly to be described as members of the Chambers.
29. Mr O'Dempsey submits that the question of who is a member must be an objective test, it cannot simply be left to an organisation to define its own terms and thus write or rewrite its own liability to the discrimination legislation. Mr Napier QC points not only to the existence of the special sections in the race and sex discrimination legislation, and soon to be in the DDA to which we have referred, but to their terms. Those sections are specifically limited, as we have indicated, to discrimination by barristers, and provide for a case of alleged discrimination in relation to applications for either a pupillage or a tenancy, and by section 26A(4) of the Race Relations Act 1976 ...and there is an identical definition in section 35A of the Sex Discrimination Act) the following is provided:

" "pupil", "pupillage", "tenancy" and "tenant" have the meaning commonly associated with their use in the context of a set of barristers' chambers."

He thus submits, while accepting that the test must be objective, that it is not at any rate part of those sections of the existing discrimination legislation to require the Court to introduce unreality, and re-write what is established practice and not any question of artifice.

30. We are satisfied, on looking at the situation in relation to these particular Chambers, although we have no reason to doubt that this differs from any other barristers' chambers, that a pupil, and of course the same test must apply in relation to a proposed applicant for pupillage, once admitted, has no relevant rights or duties within the Chambers. We look at the Constitution which is a somewhat impressive document, which has been put before us. In paragraph 2, the Definitions; section in the Constitution:

"Member" means "a barrister, who is for the time being a full tenant in Chambers (not being a door tenant)".

31. By the same paragraph, the two senior employees of the Chambers, the Senior Clerk and the Assistant Clerk, are provided to be "treated as members for all purposes other than paragraph 10 (Chamber's Rent)". By paragraph 3.1:

"Chambers shall be administered by members [as so defined] in Chambers' Meetings."

There is a provision in paragraph 3.5 for the following business only to be conducted at a Chambers' Meeting, namely appointment or expulsion of a member and the dissolution of Chambers, and the amendment of the Constitution. In 3.6 it is provided that:

"All members shall regard attendance at Chambers' meetings as being of the utmost importance"

And by 3.13, provisions are made in respect of notice of such meetings to members.

32. There is a special section in paragraph 8 headed up "Membership" which deals with the role and duties of members, and paragraph 9 is specifically dedicated to responsibilities of members of Chambers. Under paragraph 10 there is provision for members to pay rent as there provided, under paragraph 11 members have specified liabilities and under paragraph 13 members are entitled to certain maternity or paternity grants. There are provisions in paragraph 14 for members wishing to resign from Chambers - they have to give three months' notice of resignation, under paragraph 15 for members of Chambers having the right to elect to become a door tenant, that is a part-time practitioner, and then in paragraph 16 for "Dissolution", which provides that

"Chambers may be dissolved only by an affirmative vote of three quarters of all members."

There is, within the Constitution, reference to the question of pupillage, by paragraph 6.5:

"An Applications Committee shall implement the policies determined by Chambers for the recruitment of pupils and applicants to Chambers."

The latter of course are applicants to become tenants. There are separate procedures for those applying to become a pupil and for those applying to become a tenant.

33. There is, for those fortunate enough to succeed in their pupillage applications, a pupils' handbook laying down the obligations of pupils, once accepted for pupillage. They have no rights at all either as members, in the sense of voting in general meetings, or all the other rights to which we have referred, or in relation to the assets of the Chambers. They have no obligations in relation to liabilities of Chambers or to pay any contribution towards Chambers. They have, by paragraph 6, to attend during certain hours; they have, by paragraph 11, to wear certain appropriate clothing, and there is provision in respect of supervision and the opportunity for complaints and other discussions to take place within a pupillage forum. By paragraph 23 they are not charged any clerking fee in respect of earnings received during pupillage; and they receive a pupillage award, which is effectively a bursary or scholarship, of £9000. They have the opportunity to earn some extra money if they do certain kinds of work at the request or with the acquiescence of their pupil master or supervisor.
34. On any sensible analysis of what occurred when Mr Horton applied for a pupillage, that is to become a trainee barrister attached to these Chambers, he was not applying to become a member of the Chambers. None of the incidents of membership, by way of rights or obligations, would have applied to him. We accept that it is not for the body in question to write its own constitution so as to exclude itself from the ambit of the discrimination legislation, but that is not what was here happening; there is nothing unusual in this case, and there is nothing, for example, which was not positively accepted as anomalous or different by the very provision in section 26A and section 35A of the special legislation to which we have referred, as applying to the Bar. What appears to us to be conclusive that this is not something which has been specially orchestrated by this or other Chambers is the provision of the code of practice of the profession. By paragraph 803 of the Code of Conduct of the Bar, it is provided at 803.1 that:

"So long as he is a pupil a barrister in independent practice may not become or hold himself out as a member of chambers or permit his name to appear anywhere as such as member."

That prevents a pupil not only from holding himself out as a member, but from becoming a member, even if the Chambers in question were prepared to allow for that possibility.

35. Mr O'Dempsey has not been able to draw our attention to any other situation analogous to the barristers' profession which might be affected by the conclusion to which we are coming, or to any trade organisation which is anywhere near similar to a barrister's Chambers. Nothing we say would affect any different set of facts relevant to some other profession; but we are entirely clear, so far as these facts are concerned, and so far as the operation of barristers' Chambers is concerned, that when somebody applies to become a pupil, that is to do his or her training at a set of Chambers, he is not within section 34 of the Act, applying to become a member of that Chambers, on the basis, as we have now concluded, that that Chambers is a trade organisation. He is not applying to become a member of trade organisation within section 13(4).
36. This is an appeal on a point of law; we are entitled, as Mr O'Dempsey has accepted, to re-consider the question of law; we are satisfied that the Tribunal in this case came to the wrong decision on the question of construction, and although we accept that "member" can, in the English dictionary mean many things, where the question is whether someone is applying to be a member of a trade organisation in section 13(4), where the trade organisation is, as we have concluded it is, a set of barristers' Chambers, we are driven to conclude that this was not such an application. In those circumstances, we allow the appeal.