Molaudi v Ministry of Defence

A serviceman cannot present a racial-discrimination claim to an Employment Tribunal unless he has made a valid service complaint under the applicable service-complaints procedure. A complaint rejected as out of time is not a service complaint for this purpose because it cannot be considered substantively or determined on its merits.

This statutory precondition is compatible with the Racial Discrimination Directive 2000/43/EC. It does not create an absolute barrier to judicial redress, particularly because a decision rejecting the complaint may be challenged by judicial review. The Employment Tribunal has no jurisdiction to review the military authorities’ decisions on admissibility or extensions of time.

The claimant, a serving soldier, alleged racial discrimination arising from events during his military service. He submitted a service complaint to the military authorities after the prescribed time limit. The complaint was rejected as out of time, with no extension being granted.

He subsequently presented a racial-discrimination claim to the Employment Tribunal. The Employment Judge held that section 75(9) of the Race Relations Act 1976 required a valid service complaint before the Tribunal had jurisdiction, and that the rejected complaint did not satisfy that precondition.

The appeal concerned whether merely submitting the complaint, despite its rejection as out of time, was sufficient, and whether Article 7 of Directive 2000/43/EC required a different construction.

1. Appeal dismissed. The Employment Tribunal had no jurisdiction to entertain the claimant’s racial-discrimination claim.
2. The expression service complaint in section 75(9) of the Race Relations Act 1976 had to be construed in the context of the statutory requirement that the Defence Council make a determination in respect of it. A complaint rejected by the prescribed officer as out of time could not be considered by the service authorities or determined on its merits. It was therefore not a valid service complaint.
3. This construction was also consistent with the purpose of the statutory scheme. The service authorities were intended to consider the complaint before proceedings were brought in the Employment Tribunal. Treating any late written complaint as sufficient would reduce the precondition to a sterile formality and allow the statutory scheme to be circumvented.
4. The terminology in the Armed Forces Act 2006 and the Armed Forces Redress of Individual Grievance (Procedures and Time Limits) Regulations 2007, including the direction that an out-of-time complaint shall not be considered, reinforced that conclusion. The later removal of the express determination requirement in section 75(9)(b) did not alter the meaning of service complaint.
5. Directive 2000/43/EC did not require a different interpretation. A procedural precondition is permissible where it does not make judicial redress impossible or excessively ineffective. Judicial and administrative procedures remained available, including judicial review of a decision rejecting a purported service complaint. The Employment Tribunal could not act as an appellate body reviewing the military authorities’ decisions on time limits or extensions.

• Employment Appeal Tribunal: dismissed the appeal and upheld the Employment Judge’s decision that the Employment Tribunal lacked jurisdiction.