Summary of Opinion — Court of Appeal (Civil Division)

Factual and Procedural Background

Two appellants, who formerly served in the armed forces, sought to bring disability discrimination claims under the Equality Act 2010 against Company A. Appellant One was medically discharged for reasons connected to a diagnosis of human immunodeficiency virus (HIV). Appellant Two left under premature voluntary release provisions and alleges that mental health conditions, including depression, caused that exit. Employment Tribunals held they had no jurisdiction because paragraph 4(3) of Schedule 9 to the Equality Act disapplies Part 5 (relating to disability) to service in the armed forces. The Employment Appeal Tribunal ("EAT") dismissed appeals, concluding the provisions could not be read compatibly under section 3 of the Human Rights Act 1998 ("HRA"). The Court of Appeal was asked to consider applications for permission to appeal, including whether this court should determine compatibility or remit the issue, and whether a declaration of incompatibility under section 4 HRA should be made. Proceedings below involved strike-out and preliminary interpretation applications; in some instances tribunals declined to decide the Convention-compatibility issue on factual or procedural grounds.

Legal Issues Presented

1. Whether paragraph 4(3) of Schedule 9 to the Equality Act 2010 and section 108 of the Equality Act can be read, applying section 3 of the HRA, so as to permit the appellants' disability discrimination claims to proceed.
2. Whether the tribunals erred in determining the section 3 interpretative question before, or without deciding, whether the legislation was incompatible with Convention rights (the "cart before the horse" issue) and whether the matter should have been remitted to the Employment Tribunal for determination of compatibility.
3. Whether, on an ordinary reading, the relevant provisions violated the appellants' Convention rights (Article 14 read with Article 8 and, for Appellant One, Article 6), such that a declaration of incompatibility under section 4 HRA would be appropriate.
4. Whether this court should make a declaration of incompatibility under section 4 HRA or remit the compatibility question to the Employment Tribunal/EAT for factual and proportionality findings.

Arguments of the Parties

Appellants' Arguments

• The tribunals were wrong not to determine whether the statutory provisions were compatible with Convention rights and erred in applying section 3 without first finding incompatibility (relying on authorities such as R(Z) v Hackney and R (McConnell)).
• If this court has evidence before it, it should decide compatibility; alternatively, the court should remit the issue to the Employment Tribunal for factual findings (including justification and proportionality).
• The ordinary reading of the legislation violates Articles 14 and 8 (and Article 6 for Appellant One); the comparator should be members of the armed forces protected by characteristics other than disability or age.
• If a compliant reading under section 3 is impossible, the appellants invite a declaration of incompatibility under section 4 HRA.
• The matters raise issues of general importance and therefore merit appellate consideration.

Respondent's (Company A) Arguments

• No error of law was made by the tribunals; the appellants seek to assert rights that Parliament has never created since disability discrimination legislation began in 1995.
• The tribunals were entitled to decide the section 3 interpretative question first and to treat the compatibility question as rendered academic by that determination; the "cart before the horse" approach was acceptable on the facts and by agreement of the parties.
• The EAT's reasoning on section 3 was correct: reading the statute as the appellants propose would be judicial legislation and would go against the grain of the Equality Act.
• The tribunals were correct that the case does not fall within the ambit of Article 6 (for Appellant One), and it is not reasonably arguable that paragraph 4(3) can be read as proposed.
• The court should not make a declaration of incompatibility in the absence of legal error below and without necessary factual findings; tactical decisions made by the appellants below preclude undoing those steps on appeal.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court focused on the section 3 HRA interpretation question first (ground 3), as that was the issue before the EAT. Following Judge Linden's reasoning, the Court concluded that reading paragraph 4(3) of Schedule 9 to the Equality Act or section 108 in the way the appellants proposed would contravene the fundamental structure and policy of the Equality Act. The Court held that such a reading would amount to judicial legislation rather than interpretation because Parliament's long-standing policy, dating from the first disability discrimination legislation in 1995, excludes application of disability provisions to service in the armed forces. The Court considered that accepting the appellants' proposed reading would reverse that policy and raise broad policy issues for Parliament, not the courts.

On the procedural sequencing ("cart before the horse"), the Court acknowledged authorities casting doubt on deciding section 3 before determining incompatibility, but observed that the parties had adopted that approach below and that appellants could not now rely on that choice to complain of error. The Court concluded appellants had no realistic prospect of success on grounds 1A, 1B and 2 because they had agreed to the preliminary sequencing and the tribunals did not err in law in their approach.

Regarding a declaration under section 4 HRA (ground 4), the Court noted it alone has the power to make such declarations but found that, given the procedural history, the appellate court lacked necessary factual findings and evidence (particularly on proportionality and broader implications for armed forces) to make a declaration. The Court considered remittal to the Employment Tribunal as the only realistic outcome if the issue were to proceed, but refused remittal because the appeals lacked real prospects of success, the tribunals below had not erred in law, and tactical decisions taken by appellants below undermined their present case.

Overall, the Court endorsed Linden J's detailed reasoning on section 3 as clear and compelling and concluded the interpretative reading sought by appellants was impossible without usurping Parliament's role.

Holding and Implications

Order: Application refused

Direct consequences: Permission to appeal was refused; the EAT's dismissal of the appeals stands and the Employment Tribunal decisions remain undisturbed. The court declined to make a declaration of incompatibility and did not remit the compatibility issue to the Employment Tribunal for the reasons given (lack of factual findings, absence of real prospects of success, and tactical choices made by the appellants). No new substantive precedent altering the interpretation of the Equality Act was established by this decision.