Duncan v Ministry of Defence

Section 121(2) of the Equality Act 2010 must be construed purposively so as to preserve a serving member of the armed forces’ right of access to an independent tribunal within a reasonable time. The provision creates a jurisdictional bar only where the right under the internal service-complaints procedure to refer the complaint to the Defence Council has arisen and has not been exercised.

A tribunal errs in striking out a discrimination claim merely because the service complaint has not been referred to the Defence Council when the claimant has no present right to make that referral. A consequential costs order founded on the supposed absence of reasonable prospects cannot stand.

The claimant, a serving Royal Air Force corporal, presented Employment Tribunal claims for direct sex discrimination, sex-related harassment and victimisation. She had made service complaints concerning the same matters, but they remained at the first stage of the internal process and had not been referred to the Defence Council.

The Reading Employment Tribunal held that the claims were treated as withdrawn under section 121 of the Equality Act 2010, struck them out for want of jurisdiction, and ordered the claimant to pay £1,440 costs. On appeal, the parties agreed that this construction was wrong and sought a consent order allowing the appeal and remitting the matter.

1. Appeal allowed by consent. The Employment Judge erred in construing section 121 of the Equality Act 2010 as requiring an internal service complaint to have been referred to the Defence Council before the Employment Tribunal could have jurisdiction.

2. The statutory scheme had to be construed purposively. It had to maintain a lawful balance between the aim of allowing the Armed Forces to determine complaints internally before litigation and the claimant’s Article 6 Convention right to a fair hearing by an independent tribunal within a reasonable time.

3. Section 121(2) therefore operated as a jurisdictional bar only when the right under the Armed Forces Redress of Individual Grievances (Procedure and Time Limits) Regulations 2007 to refer the complaint to the Defence Council had arisen and the claimant had not exercised it. The claimant had no such right while her complaint was still at the first stage. Treating her claim as withdrawn in those circumstances would effectively bar timely access to an independent tribunal.

4. The strike-out could not stand and the claim was remitted to the Employment Tribunal. The costs order also had to be set aside: it rested on the view that the claimant’s argument had no reasonable prospect of success, whereas it was essentially correct in law.

5. The Respondent was ordered to pay the claimant’s appeal costs and the costs caused by its strike-out application before the Employment Tribunal, subject to detailed assessment if not agreed.

• Employment Appeal Tribunal Allowed the appeal by consent, set aside the jurisdictional strike-out and consequential costs order, and remitted the claim to the Employment Tribunal.
• Reading Employment Tribunal At a preliminary hearing on 4 November 2013, in a judgment sent to the parties on 20 November 2013, held that it lacked jurisdiction and ordered the claimant to pay £1,440 costs.