Ministry of Defence v Anne Rubery

A statutory exclusion of complaints about the handling, decisions and outcome of an armed-forces service complaint may lawfully prevent a serving serviceperson from bringing a free-standing Equality Act claim in the Employment Tribunal. The exclusion pursued the legitimate aims of preventing repeat challenges and challenges to internal decisions. It was proportionate because the service complaint appeal process, the Service Complaints Ombudsman, judicial review, and the Tribunal’s ability to consider relevant conduct in the substantive discrimination claim provided adequate safeguards.

Even if the exclusion breached Convention rights or retained EU-law principles, section 3 of the Human Rights Act 1998 could not be used to reverse it. Such a construction would contradict a deliberate and fundamental feature of the interlocking statutory scheme and would not go with the grain of the legislation.

The claimant, a serving RAF officer, brought a service complaint alleging workplace sex discrimination, harassment, bullying and unfair treatment. Her complaint was substantially rejected by the decision body and appeal body, although the Service Complaints Ombudsman later identified management failings and maladministration.

She brought separate Employment Tribunal proceedings alleging indirect sex discrimination and victimisation in the handling and outcome of the service complaint, including the refusal of oral hearings. The Tribunal held that section 121 of the Equality Act 2010 infringed articles 6 and 14 of the Convention and read in words under section 3 of the Human Rights Act 1998 to confer jurisdiction. It rejected a retained-EU-law route because of Schedule 1 paragraph 3 of the European Union (Withdrawal) Act 2018.

The Ministry of Defence appealed. The claimant cross-appealed on the retained-EU-law issue.

1. Appeal allowed; cross-appeal dismissed. The Employment Tribunal’s decision was quashed and replaced with a decision striking out the claim insofar as it challenged the service complaint process.

2. The parties accepted that article 6 was engaged, that the claimant’s service status was an “other status” for article 14 purposes, and that she was treated differently from civilian workers and former service personnel. Serving and former service personnel who had made complaints about events during service were in directly analogous positions. The availability of the service complaint procedure did not make their situations disanalogous.

3. The difference in treatment was nevertheless objectively justified. Regulation 3(2) of the Armed Forces (Service Complaints Miscellaneous Provisions) Regulations 2015 pursued legitimate aims: preventing repeat complaints and repeated challenges to internal decisions or Ombudsman decisions, thereby securing finality and timely resolution. The exclusion was proportionate. The claimant could use the internal appeal and Ombudsman routes, judicial review remained available, and conduct in the complaint process could be relevant to remedy and recommendations in her substantive Tribunal claim. Adequate remedies need not be identical to an Employment Tribunal claim.

4. In any event, the Tribunal could not use section 3 of the Human Rights Act 1998 to create jurisdiction. Section 121 of the Equality Act 2010, Part 14A of the Armed Forces Act 2006, and the service-complaint regulations form an interlocking code. The proposed insertion would reverse the effect of the express exclusion in regulation 3(2). That exclusion was a deliberate legislative choice and a fundamental feature of the scheme. It therefore went against the grain of the legislation.

5. The service complaint and Ombudsman procedure was not equivalent to an Employment Tribunal claim for EU-law purposes. However, at the material time Schedule 1 paragraph 3(2) of the European Union (Withdrawal) Act 2018 prohibited a court or tribunal from disapplying an enactment for incompatibility with retained general principles of EU law. The proposed reading down amounted in substance to disapplication and was unavailable.

6. No remission was required. The Tribunal could only have struck out this claim. The order did not affect the claimant’s separate, stayed claim concerning the underlying treatment by her line managers.

• Employment Appeal Tribunal: Allowed the Ministry of Defence’s appeal, quashed the Employment Tribunal’s jurisdiction decision, and substituted a decision striking out the claim under appeal: [2024] EAT 165.
• Employment Tribunal, Watford: In a judgment sent on 14 November 2022, dismissed the Ministry of Defence’s strike-out application. It held that section 121 of the Equality Act 2010 should be read compatibly with articles 6 and 14 of the Convention, but rejected the retained-EU-law argument because of Schedule 1 paragraph 3 of the European Union (Withdrawal) Act 2018.