Anne-Bernadette Rubery v Ministry of Defence

Section 121 of the Equality Act 2010 imposes a prior-service-complaint condition on Employment Tribunal jurisdiction. Its text is not itself incompatible with Convention rights merely because other legislation prevents a particular complaint from being made. Section 3 of the Human Rights Act 1998 does not authorise words which reverse deliberate exclusions in an interlocking statutory scheme. Serving armed-forces personnel are not in an analogous position to former personnel or civilian employees because they remain subject to service law and have access to the statutory service-complaints process and Ombudsman. Any difference in treatment was, in any event, justified.

The appellant, a serving RAF officer, brought Employment Tribunal claims alleging indirect sex discrimination and victimisation in the Ministry of Defence’s handling of her service complaint. The Employment Tribunal dismissed the Ministry’s jurisdiction application, held that section 121 of the Equality Act 2010 was incompatible with articles 6 and 14 of the Convention, and read an additional subsection into it. The Employment Appeal Tribunal allowed the Ministry’s appeal, holding that the statutory scheme did not breach article 14 read with article 6 and striking out the claims: [2024] EAT 165. The central questions were whether the restriction on Employment Tribunal access was Convention-incompatible and, if so, whether section 3 of the Human Rights Act 1998 permitted the proposed reading-in.

1. Appeal dismissed. The Employment Tribunal erred in law by holding that the legislative scheme discriminated contrary to article 14 read with article 6 and by adding subsection (1A) to section 121 of the Equality Act 2010. There were no grounds for a declaration of incompatibility.
2. Section 121, considered alone, merely imposes two conditions on Employment Tribunal jurisdiction: the complainant must first have made a service complaint and must not have withdrawn it. The alleged catch-22 resulted from the interlocking statutory scheme, not from the words of section 121. Section 3 of the Human Rights Act 1998 therefore neither required nor permitted the Tribunal to rewrite section 121.
3. Parliament was to be taken to have known, when enacting and amending the Equality Act 2010, of the primary service-complaints legislation and of the detailed exclusions in the 2007 and 2015 Regulations. Those regulations reflected conscious choices about the extent to which discrimination, bullying and harassment complaints could be made. The court was not qualified to alter that balance through statutory interpretation.
4. Serving armed-forces personnel were not in an analogous situation to former personnel or civilian employees. Serving personnel remain subject to service law and form part of a disciplined force in which obedience, cohesion and morale are essential. They also have access, in relation to current and past service, to a statutory service-complaints process and the Service Complaints Ombudsman.
5. In any event, the difference in treatment was justified. Avoiding prolonged disputes and satellite litigation about the complaints process was conducive to cohesion and good morale. Serving in the armed forces was not a suspect category, so the measure was permissible under either conventional proportionality or the manifestly-without-reasonable-foundation standard. The detailed legislative balance involved policy judgments for Parliament and the Secretary of State.

• Court of Appeal (Civil Division) [2026] EWCA Civ 8: dismissed the appeal and upheld the EAT’s substituted decision striking out the claims.
• Employment Appeal Tribunal [2024] EAT 165: allowed the Ministry of Defence’s appeal, quashed the Employment Tribunal’s decision and substituted an order striking out the claims.
• Employment Tribunal: dismissed the Ministry’s application to strike out for want of jurisdiction, held section 121 of the Equality Act 2010 incompatible with articles 6 and 14, and read subsection (1A) into section 121.