Britliff v Birmingham City Council

The United Nations Convention on the Rights of Persons with Disabilities may inform the interpretation of domestic disability-discrimination legislation within the scope of EU law. It does not itself confer directly enforceable domestic rights.

Designation of the Convention as a Community Treaty by the European Communities (Definition of Treaties) (United Nations Convention on Rights of Persons with Disabilities) Order 2009 No 1181 does not alter that position. Section 2(1) of the European Communities Act 1972 does not make every provision of every treaty directly effective. The Convention's general, aspirational and state-directed provisions are insufficiently clear, precise, unconditional and unqualified for direct effect.

The claimant, a social worker dismissed by the respondent local authority, brought claims of unfair dismissal and disability discrimination. He also sought to rely on the United Nations Convention on the Rights of Persons with Disabilities (CRPD) as a source of rights additional to those under the Equality Act 2010.

At a preliminary hearing, the Employment Tribunal held that the CRPD was not directly effective, was not incorporated into domestic law by the 2009 Order, and created no separate route for a disability-discrimination claim. The claimant appealed. The central issue was whether the Order and section 2(1) of the European Communities Act 1972 made the CRPD directly enforceable in the Employment Tribunal, and whether the Tribunal had understated its interpretative effect.

1. Appeal dismissed. The Employment Tribunal made no error of law in holding that the CRPD was not incorporated into domestic law and did not create a free-standing Employment Tribunal claim outside the Equality Act 2010.

2. Article 2 of the 2009 Order did no more than designate the CRPD as a Community Treaty for the purposes of the European Communities Act 1972. Section 2(1) did not, without more, make all provisions of all EU Treaties directly effective in domestic law. It required only rights which, under the Treaties, were to have legal effect to be recognised and enforced through the appropriate mechanisms.

3. Direct effect required a provision to be sufficiently clear and precise, unconditional and unqualified. The CRPD's provisions were generally expressed in principled, aspirational and state-directed terms and did not satisfy that test. Article 27(1)(a) could not assist because it depended upon the Article 2 definition of discrimination, which itself did not meet the test. The decision in Z v A Government Department confirmed that the Convention lacked direct effect in EU law.

4. The Convention nevertheless had indirect effect. The Framework Directive had, so far as possible, to be interpreted consistently with the CRPD. Accordingly, either party could invite the Employment Tribunal, when deciding the statutory claims, to use relevant Convention provisions as an interpretative aid to the Equality Act 2010, subject to the established limits of the interpretative obligation.

5. The preliminary hearing was not required to decide how that obligation might affect particular substantive issues. Those issues remained for the full hearing, where the respondent had already accepted that the claimant was disabled for the purposes of the 2010 Act.

• Employment Appeal Tribunal: appeal dismissed; the preliminary decision of the Employment Tribunal was upheld.
• Employment Tribunal: preliminary hearing before Employment Judge Woffenden held that the CRPD was not directly effective, was not incorporated by the 2009 Order, and created no separate disability-discrimination claim outside the Equality Act 2010.