Case Nos: A2/2008/1360
Neutral Citation Number: [2009] EWCA Civ 340
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 10th March 2009

Before:

LADY JUSTICE ARDEN
LORD JUSTICE MOSES
and
LORD JUSTICE ELIAS

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	X	
Appellant 	
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MID SUSSEX CITIZENS ADVICE BUREAU & ANR	

Respondents	

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Mr J Lofthouse and Mr S Keene (instructed by the Free Representation Unit) appeared on behalf of the Appellant.

Mr P Michell and Mr E Williams (instructed by Messrs Bates Wells & Braithwaite) appeared on behalf of the Respondents.

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Judgment

Lady Justice Arden:  
1.	This is an appeal against the decision of HHJ Serota QC sitting in the Employment Appeal Tribunal dated 12 May 2008.  The critical part of the order was dismissing a ground of appeal which the appellant seeks to raise against a decision of the Employment Tribunal dated 14 January 2008.  The appellant sought to raise a claim that the decision of the Tribunal that volunteer workers are excluded from the protection of the Disability Discrimination Act 1995 is incompatible with Council Directive 2000/78/EC, which established a general framework for equal treatment in employment and occupation.  

2.	This is a claim in which the appellant seeks relief in respect of alleged disability discrimination.  She was a volunteer for a Citizen’s Advice Bureau, and indeed she is an expert in welfare law and had a position as a specialist adviser with the bureau of the Citizen’s Advice Bureau.  The Employment Tribunal dismissed her claim.  They held that the position that she held with the Bureau was not a work placement, as that term is defined by the Disability Discrimination Act, and that she was not an employee of the Bureau, she had no legally binding contract and no obligation personally to provide services.  The Employment Tribunal of course found a number of facts in the course of the decision.  

3.	Before HHJ Serota, there was a hearing to decide which grounds of appeal should go forward to a full hearing of the Employment Appeal Tribunal.  The first ground of appeal was that the Tribunal was wrong to find that the claimant’s volunteer work in the circumstances of the case did not amount to practical work experience and thus bring her within the protection of the Disability Discrimination Act 1995.  HHJ Serota gave permission for that to go to a full hearing.  Likewise in relation to the second ground, he gave permission; and that second ground was that the Employment Tribunal had failed to deal with an issue as to whether it had jurisdiction under section 4(1)(a) of the Disability Discrimination Act 1995 on the basis that volunteer work made available by the Bureau to persons such as the claimant qualified as an arrangement made by an employer for the purpose of determining to whom he should offer employment.  The Employment Appeal Tribunal made an order requesting the Employment Tribunal to clarify its findings of fact.  That order was communicated to the Tribunal and, as we understand it, some further facts have been found.

4.	So the upshot was that the Employment Appeal Tribunal gave permission on two out of three of the grounds on which it was sought to raise an appeal, and it considered that those grounds were arguable.  On the third ground, however, HHJ Serota held that it was not arguable that the role of the appellant constituted occupation for the purposes of the Directive 2000/78.  He held that in the context of the Directive that term meant some form of work activity; either that the person concerned was self-employed or that he or she was an office holder.  He held that in his judgment it was an abuse of language to refer to part-time voluntary work undertaken by a person in the position of the appellant as amounting to an occupation.  Therefore he refused leave.

5.	The appellant appeals from that part of the holding.  The matter came before Pill LJ, who held that there was an arguable point for the purposes of this appeal.  So the matter has come on for hearing accordingly.  And thus, for instance, there is the possibility that despite the findings of the Employment Tribunal there was in fact the sufficient performance or obligation to perform personally services to constitute an occupation.

6.	The matter has come before this court this morning, and this court indicated that, if the point was one which could now be raised, this court thought that it should go back to be considered in the round with the other issues to be considered by the Employment Appeal Tribunal.  That was a provisional view, and we have heard argument accordingly on the question of whether the point can now be raised, and in addition whether this is a matter which should go back to the Employment Appeal Tribunal.  On the question whether the matter can now be raised, it is of course critical to consider whether or not there are any further facts to be found, because if so then the practice would be to allow the matter to go back unless there are special circumstances; per contra, if there were facts required to be found, then it would not be appropriate to give permission for a new point now to be raised.  There are a number of authorities referred to in the skeleton arguments on that point, including the authority of Miriki v Bar Council [2002] ICR 505, to which I was a party.

7.	Mr John Lofthouse QC, who appears for the appellant, took us to paragraph 20 of the decision of the Tribunal.  That makes it clear that the appellant had the position of specialist advisor for welfare rights, and that in capacity she undertook a range of welfare advice duties, and further that she had considerable autonomy in welfare advice work.  There are earlier findings which indicate the times when she was expected to arrive at the Bureau.  Mr Lofthouse QC is not, of course, limited to those particular facts, but they are the key facts, and in my judgment they are sufficient as a basis for his arguing the new point on the test which he puts forward, which is that there is an obligation for the purposes of the Directive if her activities for the Bureau were a sufficiently significant or important part of the Bureau’s function so as to be not merely “marginal”, such as the following of a hobby or the lending occasional provision of assistance.  That, in broad terms, is the test which Mr Lofthouse QC would seek to argue for in relation to the term “occupation”.  

8.	Mr Michell, who appears for the respondents, submits that although the appellant may be content to abide by those facts -- I should add that Mr Lofthouse QC would of course refer to further facts, but as I see it he must be limited to the facts as found -- he says that the respondents may wish to argue that those facts on which the appellant relies are not sufficient to determine the question of occupation.  But that objection can be met by imposing, as I would do, a limitation on the appellant’s position that on the new ground the appellant should be limited to the findings of the Employment Tribunal which have already been made, whether in the original decision or pursuant to the order of HHJ Serota of 12 May.  Mr Michell went on to argue that there should not be reference back to the Employment Appeal Tribunal in any event, because not only was there an issue of occupation, but there were also further issues such as the question whether the Disability Discrimination Act 1995 could in fact bear the interpretation it applied not only to employment and work placement, but also to an occupation as found by the Tribunal or this court.  In addition to that, if the interpretation was not possible, there was an issue as to whether any claim for direct effect could apply to this respondent which is not an emanation of the state.

9.	In my judgment, while I fully accept that those consequential issues may arise, and have been persuasively argued in the skeleton argument of the respondent, it is really not possible to deal with the issue of interpretation without understanding properly what is included within the issue of the term “occupation”.  While we have a test proffered by the appellant which is helpful, the court would have to determine whether that was the true test, in reality, before engaging on the question of whether the Disability Discrimination Act 1995 could bear the interpretation that it applied to that additional category of activity.  Likewise in my judgment it seems to me it would not be necessary for this court to go on to the issue of direct effect without having looked at the question of interpretation; and in my judgment the right way to deal with this case is to take the issues in their logical order and at the appropriate tier of the judicial hierarchy. 

10.	Accordingly, in my judgment, the right course in this case would be to give permission to set aside the order of the Employment Tribunal that this issue is not arguable.  I would for my part accept that it was an arguable issue on the basis of the points put forward in the skeleton argument, and I would also go on to hold that this was an issue which ought to be dealt with by the Employment Appeal Tribunal, where it can be seen in the round with the other issues such as work placement.  That would also be the appropriate place to deal with the issues of interpretation and, if it arises, direct effect.  Neither issue may arise; but if they do arise, it seems to me they should be taken after the issue of occupation.

11.	Accordingly, for my part, I would make an order in those terms.  

12.	I would go on to say this: that where a single Lord Justice looking at this matter on paper has given permission to appeal against the dismissal of a ground by the Employment Appeal Tribunal at the sift stage, the parties should consider the position very carefully indeed as to whether they would seek an order allowing the appeal by consent.  Because in reality, this court is going to be very reluctant to find that a ground is not arguable once it has been considered on paper in that way, unless some matter has been left out of account or there are special circumstances.  I would make that point so that it could be borne in mind in future when appeals of this kind arise.  It could lead to the saving of valuable costs and time if that course were taken.

13.	There is one further point.  The appellant is a bankrupt, and an undertaking has been offered to us, to be committed to writing, by the appellant that she will abandon any claim which would make this a hybrid claim that had to be pursued by the Official Receiver, if at all.  We have accepted that undertaking.

14.	For those reasons, I would make an order allowing the appeal on those terms.

Lord Justice Moses:  
15.	I agree.

LORD JUSTICE ELIAS:  
16.	So do I.

Order:  Appeal allowed.