Background:

The claimant was employed as a squadron leader in the RAF. She submitted a complaint through a statutory complaints regime relating to bullying and discrimination. This complaint was dismissed without an oral hearing even though she had requested one. She appealed that internally which was also refused, again without an oral hearing. The claimant further complained to the Service Complaints Ombudsman but also lodged a claim with the Tribunal claiming sex discrimination and harassment.

The Service Complaints Ombudsman partially upheld the claimant’s complaint but not on the grounds of discrimination or harassment.  The issue for the Tribunal claim was whether it had jurisdiction to hear the claim regarding the legislative framework as it applied to those in the Armed Forces and how it interlinked with legislation relating to non-discrimination, such as the Equality Act 2010.

Outcome:

The Tribunal and EAT outlined that it was common ground that a member of the armed forces could not bring a claim under the Equality Act 2010 due to the Armed Forces (Service Complaints Miscellaneous Provisions) Regulations 2015. This was because the Tribunal lacked jurisdiction to consider a claim under those statutory provisions but stated they could hear a claim relating to rights under the European Convention on Human Rights or under retained EU Law.

At first instance, the Tribunal found that there was discrimination under Article 14 of the ECHR and it was not objectively justified by the respondent. On process, it was held that the respondent’s aim of securing finality through its complaint process and preventing repeat claims may have been legitimate but not proportionate as it barred access to the Tribunal in relation to claims about the process itself. This decision was appealed by the Ministry of Defence. The EAT allowed the appeal accepting arguments that there was a need for different treatment of service personnel. They held that the disadvantage of not being able to bring Tribunal action had to be assessed against the adequacy of the internal process of complaints, appeal and Ombudsman. This focus on adequate did not mean it had to be identical to what the Tribunal would do. Bearing in mind contextual matters such as ensuring high morale, discipline and avoiding long-running unresolved complaints it was held that the internal process, and how it was run, was proportionate and achieved a legitimate aim.

The claimant had submitted a cross-appeal which was regarded as academic by the EAT but was considered. This related to the process and the lack of oral hearing being contrary to EU Law and rights. They held it was arguable that the failure to hold an oral hearing made it practically impossible or excessively difficult to exercise the rights under EU Law in terms of ensuring equivalence and effectiveness. his did not lead to an outcome based upon the decision above regarding jurisdiction but is useful from a procedural stand-point.

Practical Guidance for Employers:

This case seems to be quite narrow in its application as it pertains to jurisdiction for the Tribunal when the action is taken by Armed Forces personnel.  However, the actual scope of the judgment provides some useful points especially in relation to how ECHR rights and EU law can operate as a basis to allow for an action – which goes into the process and will be especially useful in Northern Ireland where there is not to be a diminution of rights as a result of the Windsor Framework.

https://assets.publishing.service.gov.uk/media/670ceeb6e84ae1fd8592f288/Ministry_of_Defence_v_Mrs_Anne_Rubery__2024__EAT_165.pdf