Williams v The Ministry of Defence

A service member may pursue an employment tribunal discrimination claim only after complying with the statutory service-complaint procedure. A complaint is treated as withdrawn where the member fails to make the required timely application for referral, and the tribunal then lacks jurisdiction.

Notification of a service-complaint decision is effective when the decision maker, reasons and right of referral are communicated in writing. An authorised copy of the decision need not bear the decision maker’s signature. Reasonable procedural time limits and a prescribed officer’s power to decide whether a late referral was reasonably practicable are compatible with Article 6 and the requirement for an effective remedy, particularly because judicial review remains available for an unlawful administrative decision.

The claimant, an RAF nurse, brought discrimination complaints against the Ministry of Defence. She had made a service complaint but did not receive the original outcome letter. Her solicitors later received a copy, which she read by 30 June 2011. She did not seek referral of the complaint until 23 December 2011.

The Employment Tribunal held that she had received effective notification, had not made a timely referral application, and that her service complaint was therefore withdrawn for the purposes of the Equality Act 2010. It dismissed the tribunal claim for want of jurisdiction. She appealed, challenging the validity of notification and advancing a new Article 6 argument concerning the officer who determined lateness.

1. Appeal dismissed. The Employment Tribunal correctly held that it lacked jurisdiction. The claimant’s failure to pursue the prescribed referral procedure meant that her service complaint was treated as withdrawn under section 121 of the Equality Act 2010.
2. Regulation 20 of the Armed Forces Redress of Individual Grievances Procedures and Time Limits Regulations 2007 requires written notification identifying the decision maker’s decision and reasons, and informing the complainant of the right to seek referral. It does not require the decision maker personally to transmit the document, nor a signed original, formal engrossment or seal. An authorised copy containing the decision and reasons was sufficient notification.
3. The time for applying under regulation 21 did not begin until the claimant had received, or had a reasonable opportunity to receive, the outcome letter. On the Employment Judge’s findings, she had read the copy by 30 June 2011. Her later application was substantially out of time. The original letter’s loss did not invalidate the decision or require a fresh decision.
4. The new Article 6 point was not permitted. The ordinary rule is that a new point should not be raised on appeal save in limited circumstances, and this case did not fall within them. In any event, regulation 23 was compatible with Article 6. Parliament could entrust both the substantive service-complaint decision and the decision whether a late application was reasonably practicable to the prescribed officer. Here, a different officer determined the late application.
5. Reasonable procedural limits do not deny an effective remedy. The statutory scheme leaves judicial review available for an administrative failure to apply the regulations lawfully. The claimant had an opportunity to advance reasons why it had not been reasonably practicable to apply earlier, but failed to provide a satisfactory explanation.

• Employment Appeal Tribunal: Appeal dismissed; the Employment Tribunal’s jurisdictional dismissal was upheld.
• Employment Tribunal: At a pre-hearing review, the Employment Judge held that the service complaint had been withdrawn and dismissed the discrimination claim for want of jurisdiction.