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An employment tribunal chairman had been entitled to conclude that in order to determine a preliminary issue between the parties, namely whether the claimant could bring a claim of associative discrimination under the Disability Discrimination Act 1995, it was necessary to obtain the European Court of Justice's opinion on the proper interpretation of the Equal Treatment Framework Directive 2000/78.
The appellant law firm (L) appealed against the decision of a tribunal chairman to refer a question to the European Court of Justice.
The respondent (C) was employed by L as a secretary. C sought to bring a claim of unlawful disability discrimination against L. C was not herself disabled within the meaning of the Disability Discrimination Act 1995, but advanced her claim on the grounds that she was the carer of a disabled person, namely her son (S). S was born in 2002 and it was accepted that he was disabled. A pre-hearing review was listed to consider whether C was entitled to bring a claim of unlawful discrimination against L based on the concept of "associative discrimination". At the hearing the chairman directed that the question of whether associative discrimination was prohibited by Council Directive 2000/78 be referred to the ECJ. The Directive did not have direct effect in the United Kingdom.
L argued that, in the instant case, whatever the true interpretation of the Directive, it was not possible to construe the 1995 Act in such a way as to include protection for associative discrimination. Thus, L argued that the reference was academic and ought to be revoked.
HELD: (1) The 1995 Act was capable of interpretation, consistent with an interpretation of the Directive favourable to C, so as to include associative discrimination without distorting the words of the statute. Such an approach was consistent with the domestic courts' responsibility to arrive at a construction which ensured that the Directive was fully effective, Pfeiffer v Deutsches Rotes Kreuz Kreisverband Waldshut eV (C-397/01)  E.C.R. I-8835 applied. (2) A reference was necessary not solely where, whichever way the point was decided, it was conclusive of the case, but also where it was required to do justice. In the instant case the chairman was entitled to conclude, in the proper exercise of her discretion, that in order to determine the preliminary issue as to whether C could bring a claim of associative discrimination under the 1995 Act, it was first necessary to obtain the ECJ's opinion as to the proper interpretation of the Directive before deciding whether the 1995 Act should be construed in the way contended for on C's behalf, HP Bulmer Ltd v J Bollinger SA (No.2)  Ch. 401 and R. v Plymouth Justices Ex p. Rogers  Q.B. 863 applied.
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