CA-2024-001773 - [2025] EWCA Civ 1057

GROUND 2

Ground 2 only arises in the event that the Appellant succeeds on Ground 1. She has not succeeded and there is no need for me to address Ground 2. I have considered whether I should, in any event, offer a view on the merits of Ground 2, but I consider it preferable to leave Ground 2 unresolved without expressing a view on it either way. That is for the following reasons. First, the time devoted at the hearing to argument on Ground 2 was very compressed and the point was taken at considerable speed. Even with the assistance of the parties’ written arguments on Ground 2, the issue has not in my view been explored thoroughly. Secondly, the issue is not straightforward. The parties advanced starkly differing submissions, arising out of a number of authorities. The leading cases are Case C-73/08 Bressol v Gouvernement de la Communauté Française [2010] 3 CMLR 20, Patmalniece v Secretary of State for Work and Pensions [2011] UKSC 11, [2011] 1 WLR 783 and R (Fratila) v Secretary of State for Work and Pensions (AIRE Centre intervening) [2020] EWHC 998 (Admin), [2020] PTSR 1424 (High Court), [2020] EWCA Civ 1741, [2021] 3 All ER 1043 (Court of Appeal) and [2021] UKSC 53, [2022] 3 All ER 1045 (Supreme Court). Ground 2 requires careful analysis of these cases and others in the same line. The cases themselves show that views on the correct approach to and definition of direct discrimination differ, with the Court in Bressol rejecting the opinion of the Advocate General, and the Court of Appeal in Fratila being split on the point with the majority differing from the first instance judge. Third, it follows that any view expressed by this Court would be of only modest value. It would be obiter dicta in light of the conclusion reached on Ground 1 and would be subordinate to the conclusions already reached by superior Courts. Fourthly, Jay J expressed the view, on a provisional basis, that any discrimination suffered by the Appellant, if he was wrong on Ground 1, was indirect. The Appellant knows the case she has to meet if the point was to be the subject of a further appeal beyond this Court, on the hypothesis that I am wrong in my conclusions on Ground 1.