Purja & Ors v Ministry of Defence

Differential treatment engages article 14 only where the claimant and comparator are in sufficiently analogous circumstances to require objective justification. The questions of comparability and justification overlap and should not be treated as rigid, successive hurdles.

Differences in Gurkha and other British soldiers’ recruitment, service, leave, discharge and retirement arrangements meant that their pension and long-leave pay positions were not analogous. The employment package, including a non-contributory pension, nevertheless fell within the ambit of property rights. A majority also found no established article 14 violation concerning accompanied service, although their reasons differed. A potentially irrational policy does not necessarily amount to discrimination based on an outlawed status.

Seven former Gurkha soldiers resident in Nepal challenged differences between the terms governing Gurkhas and those governing other British soldiers. The complaints concerned pension rates, basic pay during extended leave in Nepal and restricted accompanied service. They alleged discrimination based on nationality contrary to article 14 of the European Convention on Human Rights, read with article 1 of the First Protocol or article 8.

Sullivan J dismissed the claim. He found no article 14 breach concerning pensions or pay and declined to grant declaratory relief concerning accompanied service. The former soldiers appealed. The central issues were whether the benefits fell within Convention rights, whether the groups received materially different treatment, whether they were analogously situated, whether any difference was justified and whether relief should have been granted.

1. Appeal dismissed by a majority. Simon Brown and Chadwick LJJ dismissed the appeal. Rix LJ agreed concerning pensions and pay but dissented concerning accompanied service.

2. The pension and pay complaints fell within the ambit of article 1 of the First Protocol. Per Simon Brown LJ, pension entitlement formed part of the overall employment remuneration package. Its non-contributory character and the absence of an expectation of any greater payment did not remove it from the protection against status-based discrimination. Chadwick LJ accepted that the court was bound by the existing Court of Appeal approach, despite expressing reservations.

3. The article 14 framework in Wandsworth London Borough Council v Michalak [2002] EWCA Civ 271 was not a rigid series of discrete hurdles. Comparability and justification can overlap. Gurkhas were recruited exclusively from Nepal, served under distinct arrangements, maintained links with Nepal, were discharged there and normally received an immediate pension after 15 years. Other British soldiers had materially different career, leave and pension arrangements. The groups were therefore not analogously situated concerning pensions or long-leave pay, and those complaints failed.

4. On accompanied service, Simon Brown LJ held that the groups were not analogous because extended home leave, the maintenance of Nepalese links and the Brigade’s operational structure justified a material difference in treatment. Chadwick LJ considered that the circumstances could call for justification, but that the judge had neither found nor been equipped to find that the extent of the restriction could be explained only by an outlawed characteristic. Both concluded that no article 14 declaration should be granted. A policy might remain open to irrationality challenge without constituting article 14 discrimination.

5. Rix LJ would have held that serving Gurkha and other British soldiers were analogous regarding family accommodation. In his view the Ministry had failed to justify retaining the 25 per cent limit, and a declaration of breach should have been granted. The operative order was that the appeal be dismissed, with no order as to costs except for detailed assessment of the appellants’ publicly funded costs.

1. Court of Appeal (Civil Division): The appeal was dismissed by a majority. Simon Brown and Chadwick LJJ rejected the appeal in full; Rix LJ dissented on accompanied service.

2. High Court, Queen’s Bench Division (Administrative Court): Sullivan J dismissed the challenge on 21 February 2003. He rejected the pension and pay claims and declined to grant declaratory relief concerning accompanied service.