In Person For the v Respondent — 2018

The claimant, a social worker employed by Birmingham City Council between 1 December 2008 and 15 May 2017, presented claims of unfair dismissal and disability discrimination. This reserved preliminary hearing was convened to decide a narrow jurisdictional point: whether the United Nations Convention on the Rights of Persons with Disabilities, via the CRPD Order 2009, could be relied on as a direct source of rights allowing a disability discrimination claim outside the Equality Act 2010. By the time of the hearing, the respondent had accepted that the claimant had a disability within section 6 of the Equality Act 2010 in relation to sleep apnoea, anxiety and depression.

The claimant argued that the UN Convention had direct effect and was incorporated through domestic and EU law, relying on authorities including Miller, P v Commissioner of Police of the Metropolis, Walker, Benkharbouche, and Daouidi. The respondent submitted that the employment tribunal had no jurisdiction to entertain a free-standing claim founded on the UN Convention and that the CRPD Order did not create a separate domestic cause of action. The tribunal accepted the respondent's position.

The tribunal held that the CRPD Order 2009 merely specified the UN Convention as a treaty for the purposes of the European Communities Act 1972. It found that the Convention had not been incorporated into UK domestic law and did not create free-standing rights. R (Davey) v Oxfordshire County Council was cited as authority for the proposition that an unincorporated treaty may, where appropriate, be used as an interpretive aid, but cannot displace clear statutory language or create substantive domestic rights. The tribunal therefore concluded that the CRPD Order was not of direct effect and did not give the claimant a route to claim disability discrimination outside the Equality Act 2010. No remedy was determined in this preliminary judgment.