Britliff v Birmingham City Council

International instruments such as the UN Convention on the Rights of Persons with Disabilities may inform the interpretation of domestic implementing legislation but do not, by virtue of designation as an EU Treaty under the European Communities Act 1972, confer free‑standing, directly enforceable rights in domestic courts. Instead, relevant provisions of the Convention may have indirect effect and be used as an interpretative aid to give effect to EU law or domestic provisions where appropriate.

The claimant, a dismissed social worker, appealed an Employment Tribunal preliminary ruling that the European Communities (Definition of Treaties) (United Nations Convention on Rights of Persons with Disabilities) Order 2009 (the 2009 Order) did not give the Convention direct effect in domestic law. The respondent accepted the claimant was disabled for the purposes of the Equality Act 2010. The ET held the 2009 Order did not incorporate the Convention into UK law. The claimant appealed to the EAT on grounds about the effect of the 2009 Order and section 2(1) of the European Communities Act 1972, and on the interpretative obligation arising from the Convention.

The central question was whether the Convention, as designated by the 2009 Order, produced directly enforceable rights in domestic tribunals or was limited to indirect/interpretative effect.

1. Disposition: The appeal is dismissed. There was no error of law in the Employment Tribunal's decision that the 2009 Order does not give the CRPD direct effect in domestic law.
2. The CRPD, as recorded in the 2009 Order, is properly available as an interpretative aid where relevant domestic legislation requires interpretation to comply with EU law. That is, the Convention can have indirect effect under the Marleasing principle.
3. However, the CRPD's provisions are generally framed in broad, aspirational terms. They are not, in the court's view, sufficiently clear, precise and unconditional to satisfy the conventional tests for direct effect under the Van Gend line of authority. The CJEU has expressly held similarly.
4. Section 2(1) of the European Communities Act 1972 does not, by itself, convert every treaty designated under the Act into directly enforceable domestic rights. The Act enables EU Treaties to be recognised and given effect but does not dispense with the separate doctrinal requirements of direct effect.
5. Authorities relied upon by the claimant, including high‑level statements in R (Miller) v Secretary of State for Exiting the European Union, do not alter the established distinction between indirect/interpretative effect and direct effect. Those passages do not support the novel argument that designation under the 2009 Order and section 2(1) produce free‑standing causes of action in tribunals.
6. The Employment Tribunal was entitled to hold that the CRPD may be used to interpret domestic law but is not a source of free‑standing domestic rights enforceable in the Employment Tribunal. Any relevant application of the interpretative obligation should be addressed at the substantive hearing of the Equality Act claims.
7. Order: Appeal dismissed. The ET decision of Employment Judge Woffenden (reserved judgment 11 September 2018) is affirmed.

• Employment Appeal Tribunal: Appeal heard and dismissed; judgment delivered 16 August 2019 ([2019] UKEAT 0291_18_1608).
• Employment Tribunal (Birmingham): Preliminary Hearing judgment by Employment Judge Woffenden dated 11 September 2018 holding the 2009 Order is not of direct effect and does not incorporate the CRPD into domestic law.