Introduction

Whittaker v. Watson (t/a P & M Watson Haulage) & Anor ([2002] ICR 1244) is a pivotal case adjudicated by the United Kingdom Employment Appeal Tribunal (EAT) on February 7, 2002. The appellant, George Edward Whittaker, employed by P & M Watson Haulage since March 1991, alleged discrimination under the Disability Discrimination Act (DDA) 1995. The primary contention revolved around the compatibility of the DDA’s Small Employer Exemption with Article 6 of the European Convention on Human Rights (ECHR), which guarantees the right to a fair hearing. The respondents included P & D Watson Haulage and the Department of Education and Employment.

Summary of the Judgment

Mr Whittaker filed an informal tribunal claim (IT1) asserting failures by his employer to provide average holiday pay, make reasonable adjustments, and breach the Disability Discrimination Act 1995. Specifically, he contended that due to his disability—a colostomy bag and limited driving capacity—his employer failed to accommodate his needs, particularly on June 26, 2000, when he was denied suitable work.

The employer, Watson Haulage, responded by asserting that the incident was atypical and related to temporary health issues, not the disability per se. Subsequently, Watson Haulage invoked the Small Employer Exemption under Section 7 of the DDA 1995, citing that they employed fewer than 15 individuals, thereby exempting them from making reasonable adjustments.

The Employment Tribunal, presided over by Chairman Mr. D.R. Sneath, held that it lacked jurisdiction to entertain the claim based on the Small Employer Exemption. Mr Whittaker appealed, invoking Article 6 of the ECHR, arguing that the exemption was incompatible with his right to a fair hearing. The EAT ultimately dismissed the appeal but granted permission to Mr Whittaker to escalate the matter to the Court of Appeal.

Analysis

Precedents Cited

The judgment primarily references the Disability Discrimination Act 1995, particularly Section 7, which outlines exemptions for small employers. Additionally, the case draws on the Human Rights Act 1998, especially concerning the compatibility of domestic laws with the ECHR. The Chairman also analogizes with the Seymour Smith & Perez case, suggesting a parallel in procedural handling of such legal conflicts.

Legal Reasoning

The core legal issue centers on whether the Small Employer Exemption under Section 7 of the DDA 1995 aligns with Article 6 of the ECHR. The tribunal acknowledged that Watson Haulage employed fewer than 15 individuals, thus falling within the exemption threshold. However, Mr Whittaker contended that this exemption infringed upon his right to a fair hearing.

The EAT examined whether Section 7 could be interpreted in a manner that complies with the ECHR. The tribunal concluded that while the exemption is clear in the statute, there is a "reasonable prospect" that higher courts might deem it incompatible with Articles 6 and 14 (non-discrimination). However, the Employment Appeal Tribunal recognized its limitations in addressing such high-order legal questions, particularly the lack of jurisdiction to declare legislative incompatibility under the Human Rights Act.

The judgment further deliberates on the definition of "courts" within the Human Rights framework, determining that bodies like the Employment Tribunal or Employment Appeal Tribunal are excluded from making declarations of incompatibility. This limitation underscored the procedural impasse faced by Mr Whittaker, leading the EAT to dismiss the appeal while permitting an escalation to the Court of Appeal.

Impact

This judgment underscores the complexities involved when statutory exemptions intersect with human rights protections. By highlighting the limitations of bodies like the Employment Appeal Tribunal in addressing compatibility issues with the ECHR, the case signals potential legislative gaps. It emphasizes the necessity for clear pathways for individuals to challenge exemptions that may infringe upon fundamental rights. Moreover, the decision to allow the appeal to proceed to higher courts sets a precedent for future cases where statutory exemptions are contested under human rights grounds.

Complex Concepts Simplified

Small Employer Exemption

Under the Disability Discrimination Act 1995, Section 7 provides that employers with fewer than a specified number of employees (initially 20, later reduced to 15) are exempt from certain obligations, such as making reasonable adjustments for disabled employees. This exemption aims to balance anti-discrimination efforts with the practical capacities of smaller businesses.

Article 6 of the European Convention on Human Rights

Article 6 guarantees the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal. In this context, Mr Whittaker argued that the application of the Small Employer Exemption deprived him of a fair opportunity to have his discrimination claim heard.

Declaration of Incompatibility

A declaration of incompatibility is a formal statement by a court that a specific provision of primary legislation is incompatible with the ECHR. While such a declaration does not invalidate the law, it signals to Parliament that the law should be amended. Only designated courts, such as the High Court or Court of Appeal, can issue such declarations.

Conclusion

The Whittaker v. Watson case serves as a critical examination of the interplay between statutory exemptions and human rights protections. It highlights the constraints faced by lower tribunals in addressing compatibility issues with the ECHR and underscores the importance of having appropriate judicial forums for such determinations. The judgment reinforces the principle that while legislative exemptions are necessary for practical governance, they must not infringe upon fundamental human rights. Moving forward, this case may influence both legislative reforms and judicial approaches to ensuring that anti-discrimination laws effectively protect the rights of individuals without compromising the operational capacities of small employers.