L & Anor v Ministry of Defence

Section 3(1) of the Human Rights Act 1998 cannot be used to reverse a clear and longstanding legislative policy that disability and age discrimination rights do not apply to service in the armed forces. Such a reading would contradict paragraph 4(3) of Schedule 9 to the Equality Act 2010, alter fundamental features of the statutory scheme, and require policy choices for Parliament.

Post-termination protection under section 108 continues rights acquired through a protected relationship. It does not create disability discrimination rights for former service personnel who had none during service.

Two former members of the armed forces appealed preliminary Employment Tribunal rulings that their disability discrimination claims were barred by paragraph 4(3) of Schedule 9 to the Equality Act 2010.

Mr L had been medically discharged following an HIV diagnosis. Mr Dunn, discharged on premature voluntary release, alleged that the refusal to redesignate his discharge as medical, including by adjusting a 12-month rule, was post-termination disability discrimination under section 108.

Each appellant contended that section 3(1) of the Human Rights Act 1998 permitted a Convention-compatible reading, assuming Article 14 ECHR required protection. The central issue was whether such a reading was legally possible.

1. Appeals dismissed. The Employment Appeal Tribunal upheld the conclusions that the Equality Act 2010 could not be read under section 3(1) of the Human Rights Act 1998 to give either appellant a right to bring a disability discrimination claim connected with armed forces service.

2. Paragraph 4(3) of Schedule 9 expressly provides that Part 5, so far as relating to disability or age, does not apply to armed forces service. The legislative history showed a consistent Parliamentary choice, maintained through the Disability Discrimination Act 1995, the 2003 amending Regulations and the wholesale review preceding the 2010 Act, not to confer those rights in that setting.

3. Reading paragraph 4(3) as excluding HIV, or otherwise removing its effect, would say the opposite of what Parliament enacted. It would reverse rather than qualify a fundamental policy, and would require choices about disabilities, forms of discrimination, roles, stages of service and practical consequences for which Parliament, not a court, was equipped.

4. Section 108 protects a person after a relationship ends only where the person acquired the relevant discrimination rights through that relationship. The proposed reading for former service personnel would create rights after service which they did not possess before or during it. That was a major departure from the statutory scheme and also conflicted with the consistent policy that disability and age discrimination protection did not apply to armed forces service, including post-termination matters.

5. For completeness, the Tribunal rejected Mr L’s Article 6 ground: the exclusion concerned the existence and extent of a substantive right, rather than a procedural bar to determination of an existing civil right. It would have assumed, without deciding, that Mr L’s complaint fell within Article 8 and remitted justification had that issue remained live.

• Employment Appeal Tribunal: appeals from the Newcastle and Watford Employment Tribunals dismissed: [2025] EAT 197.
• Newcastle Employment Tribunal: Mr L’s claim was struck out in a reserved judgment sent on 21 October 2024 because paragraph 4(3) of Schedule 9 to the Equality Act 2010 could not be read compatibly under section 3.
• Watford Employment Tribunal: Mr Dunn’s claim was held barred in a reserved judgment sent on 16 July 2024 because section 108 could not be read compatibly under section 3.