Melbourne v Ministry of Defence

Members of the armed forces excluded from statutory employment proceedings cannot circumvent that exclusion by invoking the Human Rights Act 1998 for conduct occurring before the Act came into force. Section 22(4) applies only where the relevant proceedings were brought by, or at the instigation of, a public authority. A claimant’s employment tribunal complaint is not such proceedings merely because it arises from a public authority’s conduct.

For Article 6 purposes, the exclusion recognised in Pellegrin v France extends to active soldiers whose duties are inherently governmental and distinct from civilian employment. A Court of Appeal judicial review jurisdiction is exceptional and is not ordinarily exercised as an original jurisdiction without the benefit of a decision below.

Mr Melbourne, an Army serviceman, complained of serious racial abuse and brought claims for unfair dismissal and racial discrimination before an Employment Tribunal. The tribunal held that it had no jurisdiction. The Employment Appeal Tribunal upheld that conclusion, and permission to appeal was refused on paper.

Mr Melbourne renewed his application for permission to appeal. He relied on the Human Rights Act 1998, including Articles 3, 6 and 8 of the Convention, and challenged the statutory treatment of his discrimination complaints. He also sought, very late, to raise possible domestic judicial review grounds. The central issues were whether the statutory exclusions could be overcome by the Human Rights Act and whether the Court of Appeal should entertain an original judicial review application.

1. Application refused. The Employment Tribunal had no jurisdiction over the unfair dismissal complaint on domestic law grounds because the statutory scheme excluded members of HM Forces.
2. Section 22(4) of the Human Rights Act 1998 did not assist. The relevant proceedings were the complaints brought by Mr Melbourne before the Employment Tribunal. They were not brought by, or at the instigation of, a public authority. The Army’s conduct was not an attempt to promote or cause those proceedings.
3. The court distinguished Preiss v General Dental Council. In that case the General Dental Council itself brought the disciplinary proceedings. The same could not be said of the Army Council in the present case.
4. The observations in Pye (Oxford) Ltd v Graham concerning the temporal operation of section 3 were no longer authoritative. The later decision in Wainwright v Home Office rejected that approach and treated the observations in Pye as obiter and incorrect.
5. The Article 3 and Article 8 arguments had no substance. The racial abuse did not approach the Article 3 threshold, and the conduct was not an invasion of the particular privacy right protected by Article 8.
6. Following the analysis in Pellegrin v France, Article 6 did not provide a route around the statutory exclusion. The relevant distinction was between public servants performing work of the same nature as civilian employment and active soldiers whose duties were inherently governmental and materially different from civilian work.
7. The discrimination complaints were also barred. The finding that the original abuse and the later handling of the complaint were separate acts was factual and could not be disturbed. Section 75(9) applied to the complaint concerning the later handling, despite the acknowledged unsatisfactory requirement to pursue redress through the relevant military process.
8. The complaint concerning the failure to implement section 192 was untenable under human rights principles and domestic law, having regard to section 6 of the Human Rights Act 1998 and the Fire Brigade Union case.
9. The court declined to entertain an original judicial review application. Its exceptional judicial review jurisdiction was not exercised as an original jurisdiction in the ordinary case, particularly without the benefit of the lower court’s opinion.

• Employment Tribunal: held that it had no jurisdiction to hear the unfair dismissal and racial discrimination complaints.
• Employment Appeal Tribunal: upheld the tribunal’s determination.
• Court of Appeal (Civil Division): refused permission to appeal and declined to pursue an original judicial review route.