X v Mid Sussex Citizens Advice Bureau & Anor

Permission to raise a new legal issue on appeal should be granted where the existing findings of fact provide a sufficient basis for argument and no further factual inquiry is required. The issue should then be determined at the appropriate level of the judicial hierarchy and in a logical sequence. Where the meaning of “occupation” under Council Directive 2000/78/EC is central, that threshold question should be addressed before considering domestic statutory interpretation or direct effect. Where a single Lord Justice has granted permission on paper, the Court of Appeal will be reluctant to hold that the ground is not arguable unless something was overlooked or special circumstances exist.

The appellant, a volunteer specialist adviser at a Citizens Advice Bureau, brought an alleged disability discrimination claim. The Employment Tribunal held that her position was neither a work placement under the Disability Discrimination Act 1995 nor employment, because there was no legally binding contract or personal obligation to provide services.

The Employment Appeal Tribunal permitted two grounds concerning practical work experience and section 4(1)(a) of the Act to proceed, but refused permission on the argument that her role constituted “occupation” for the purposes of Council Directive 2000/78/EC. Pill LJ granted permission to appeal on that issue. The central questions were whether the issue was arguable on the facts found and whether it should be remitted for consideration with the other issues.

1. Appeal allowed. The appellant was permitted to raise the occupation issue, but was confined to the findings of fact already made by the Employment Tribunal, including any further findings made pursuant to the Employment Appeal Tribunal’s order.
2. The existing findings, including the appellant’s specialist welfare-rights role, autonomy and expected arrival times, supplied a sufficient basis for argument on whether her activities amounted to an occupation. The proposed argument was that the activities might be sufficiently significant or important to the Bureau’s function not to be merely marginal.
3. The Court of Appeal declined to determine the consequential issues at that stage. Whether the Disability Discrimination Act 1995 could be interpreted to cover an additional category of activity, and whether direct effect could operate against the respondents, depended on the proper construction of “occupation”. Those issues might not arise and should be addressed only if necessary.
4. The issue was to be dealt with by the Employment Appeal Tribunal in the round with the other permitted grounds, including the work-placement issue. The court emphasised the logical order of considering occupation first, followed, if required, by domestic statutory interpretation and direct effect. In addressing the approach to new points on appeal, the court referred to Miriki v Bar Council [2002] ICR 505.
5. Lady Justice Arden added that, where a single Lord Justice has granted permission on paper against a sift-stage refusal by the Employment Appeal Tribunal, the parties should consider consenting to an order allowing the appeal. Unless something was overlooked or special circumstances existed, the Court of Appeal would be very reluctant to find the ground not arguable. The appellant’s undertaking concerning her bankruptcy and any hybrid claim was accepted.

• Court of Appeal (Civil Division): Appeal against the Employment Appeal Tribunal’s decision dated 12 May 2008 allowed. Permission was granted to raise the occupation issue, subject to confinement to the facts already found, and the issue was to be considered by the Employment Appeal Tribunal with the other grounds.
• Employment Appeal Tribunal: Permission granted on two grounds concerning practical work experience and section 4(1)(a) of the Disability Discrimination Act 1995. Permission was refused on the occupation issue as not arguable.
• Employment Tribunal: The disability discrimination claim was dismissed. The appellant’s role was held not to be a statutory work placement or employment.