Patti-Merne Edwards v Ministry of Defence

For the jurisdictional condition in section 121(1) of the Equality Act 2010, a service complaint need not be a legal pleading or use technical language. Whether a subsequent Tribunal claim concerns the same matter must be assessed non-technically, by identifying the substance of the service complaint reasonably read as a whole.

However, a service complaint that is to support a discrimination or harassment claim must indicate in substance that the alleged treatment was connected with an applicable protected characteristic. A victimisation claim requires an indication in substance of detrimental treatment because of conduct capable of being a protected act. A narrative of unfair treatment, bullying or poor treatment alone is insufficient.

The claimant, a Lance Corporal in the British Armed Forces, made a detailed service complaint about her treatment during recovery from knee surgery. It described inadequate support, bullying, intimidation and unfair treatment, but did not expressly allege race or sex discrimination, related harassment, or victimisation.

At a preliminary hearing, the Employment Tribunal held that it lacked jurisdiction over the original race-discrimination claim and refused permission to amend to add sex discrimination, sex-related harassment and victimisation. The claimant appealed, contending that the Tribunal had imposed an unduly technical requirement as to the content of a service complaint and had infringed Article 6 rights of access to a tribunal.

1. Appeal dismissed. The Employment Tribunal correctly construed section 121(1) of the Equality Act 2010.

2. The statutory scheme requires a sufficient link between the acts complained of before the Tribunal and the service complaint. The word matter is broader than a particular act. The service complaint must nevertheless identify the substance of the wrong which the service authorities are asked to investigate and determine.

3. The assessment is non-technical and holistic. A service complaint need not use the words discrimination, harassment, victimisation, protected characteristic or protected act. Nor need it distinguish technical forms of discrimination. It must, however, indicate in substance that discrimination or harassment is alleged by reference to an applicable protected characteristic, or that detrimental treatment is alleged because of conduct capable of being a protected act.

4. That construction gives effect to the purpose of internal consideration before litigation and to the requirements for information in the service-complaint regulations. It is compatible with Article 6 of the European Convention on Human Rights. It pursues the legitimate aim of enabling the Armed Forces to resolve the potential claim internally and does not make access to the Tribunal impractical or ineffective.

5. On a fair reading of the claimant’s service complaint as a whole, it alleged inadequate welfare, bullying and unfair treatment connected with her recovery and her challenges to that treatment. It contained no allegation in substance that the treatment was because of race or sex, related to either characteristic, or imposed because she had done a protected act. The section 121 jurisdictional condition was therefore not met for any of the claims pursued or proposed.

• Employment Appeal Tribunal: dismissed the claimant’s appeal: [2024] EAT 18.
• Employment Tribunal, Bristol: following a preliminary hearing, held that it lacked jurisdiction over the race-discrimination claim and refused permission to amend to add sex discrimination, sex-related harassment and victimisation.