H Curtis v Ministry of Defence

A serving member of the armed forces must first make a service complaint about the matter before bringing an Equality Act claim in an employment tribunal. The complaint must be capable of substantive consideration by the military authorities.

However, a complaint is not deemed withdrawn merely because a specified officer fails to include it in an admissibility notification. Under the statutory scheme, the officer must decide whether each part is admissible. If any part is inadmissible, the officer must give written reasons and notify the complainant of the right to Ombudsman review. Silence creates no third route and cannot deprive the tribunal of jurisdiction.

The claimant, an RAF corporal, alleged pregnancy and maternity discrimination after her medical-board appointment was cancelled because she was pregnant. She said that the cancellation prevented her from obtaining a full fitness certificate and adversely affected promotion opportunities.

She made a service complaint that included the cancellation. The specified officer’s admissibility letter listed several heads of complaint but did not state that the medical-board complaint was inadmissible or give reasons. The Employment Tribunal struck out that element of the claim, holding that it had not formed part of the accepted service complaint and was deemed withdrawn.

The claimant appealed. The central issue was whether the omission from the admissibility letter deprived the Tribunal of jurisdiction under Equality Act 2010.

1. Appeal allowed. The Employment Tribunal erred in holding that it lacked jurisdiction over the pregnancy and maternity discrimination complaint concerning cancellation of the medical board. The EAT substituted a decision that the complaint was admissible and that the Tribunal had jurisdiction.
2. Section 121 required the claimant to have made a service complaint about the matter and for that complaint not to have been withdrawn. The claimant had made such a complaint, which expressly included cancellation of the medical board. There was no actual withdrawal.
3. The proper analysis was whether the complaint was deemed withdrawn under the statutory provisions. That analysis required a decision adverse to the complainant, notification of it and reasons, so that the complainant could exercise the relevant right of appeal or Ombudsman review.
4. Under regulation 5, a specified officer must decide whether all or part of a service complaint is admissible. If a part is inadmissible, regulation 5(4) required written notification, reasons and information about the right to seek Ombudsman review. The letter here did not make a positive inadmissibility decision, give reasons, or state that the medical-board allegation was excluded. The military authorities’ failure to comply with those requirements meant that the claimant could not seek review and the deemed-withdrawal provisions did not apply.
5. Molaudi remained authority that the internal process must receive a complaint capable of substantive consideration before an employment tribunal determines it. Its use of “valid” complaint was shorthand and should not obscure the present statutory scheme. That scheme contains mandatory safeguards and provides no implied third option by which a specified officer may remain silent while requiring the complainant to pursue a review.

• Employment Appeal Tribunal: Allowed the claimant’s appeal and substituted a decision that the medical-board discrimination complaint was admissible and within the Tribunal’s jurisdiction: [2024] EAT 161.
• Employment Tribunal: At a preliminary hearing, struck out the medical-board element of the pregnancy and maternity discrimination claim for want of jurisdiction. Reconsideration was refused.