Higham v Horton

For the purposes of section 13 of the Disability Discrimination Act 1995, “member” and “membership” bear their ordinary meaning in context. A purposive approach supports a construction as broad as the statutory language reasonably permits, but does not justify treating non-members as members. In a set of barristers’ chambers, membership depends objectively on the person’s professional role and the aggregate of his or her rights and duties. A pupil is a trainee with a distinct status, lacking the governance rights and liabilities of a tenant. The possibility of conditional practice does not make the pupil a member. An application for pupillage is therefore not an application for membership under section 13.

Mr Horton, a disabled mature student, was offered pupillage at 1 Pump Court Chambers. After illness prevented him from taking up the place, the Chambers refused his request to defer it for one year. He claimed disability discrimination under the Disability Discrimination Act 1995.

The Employment Tribunal held that the Chambers were a trade organisation and that an application for pupillage was an application for membership under section 13. The Employment Appeal Tribunal agreed on the first issue but reversed the Tribunal on the second. The appeal concerned whether a pupil barrister, or an applicant for pupillage, has membership of chambers for the purposes of section 13.

The majority, comprising Peter Gibson LJ and Jonathan Parker LJ, dismissed the appeal. Laddie J dissented and would have allowed it.

1. Statutory construction. The words “member” and “membership” are undefined and take their ordinary meaning from the context of a trade organisation. Section 13(4) of the Disability Discrimination Act 1995 confines the relevant organisation to one whose members carry on the profession or trade for which it exists. It does not extend protection to every person associated with chambers, such as staff or mini-pupils.
2. Purposive interpretation. The social purpose of discrimination legislation requires a construction as broad as the language can reasonably bear. It does not permit the court to give ordinary statutory words an artificial meaning. The majority distinguished the purposive approach discussed by Lord Diplock in R. v. National Insurance Commissioner, ex p. Hudson [1972] AC 944, because the legislation considered there had a different social purpose and operation.
3. Objective assessment. Whether a person is a member requires consideration of the aggregate of that person’s rights and duties in relation to the organisation. The Chambers’ constitution is relevant, although an organisation cannot define membership narrowly to evade the statute. Pupils were trainees receiving a bursary, with separate provisions governing them. They could not attend Chambers’ meetings, serve on committees or act as officers, and did not bear the responsibilities and liabilities of tenants.
4. Pupillage and practice. Treating an applicant for second-six pupillage differently from an applicant for first-six pupillage would be artificial. Both form part of the required year’s training, and any right to appear in court is conditional. The Code of Conduct prohibited a pupil from becoming or holding himself out as a member of chambers. The fact that a pupil had a contract with chambers, as recognised in Edmonds v Lawson [2000] 1 CR 567, did not make the pupil a member.
5. Legislative context. The specific provisions concerning pupillage in the Sex Discrimination Act 1975 and the Race Relations Act 1976 gave limited support to the majority’s conclusion, but no firm inference could be drawn from their enactment. Laddie J considered that a pupil supplied legal services throughout pupillage, was part of the chambers team and could have a level of membership without equal voting rights. That was dissenting reasoning.

• Court of Appeal (Civil Division) — [2004] EWCA Civ 941: by majority, dismissed Mr Horton’s appeal and upheld the EAT’s conclusion that applying for pupillage was not applying for membership.
• Employment Appeal Tribunal — case no. EAT077503ST: allowed the Chambers’ appeal from the Employment Tribunal on the membership issue, while agreeing that the Chambers were a trade organisation.
• Employment Tribunal, London Central — decision sent 7 August 2003: held that the Chambers were a trade organisation and that Mr Horton’s application for pupillage was an application for membership, allowing the claim to proceed.