(1)Section 120(1) does not apply to a complaint relating to an act done when the complainant was serving as a member of the armed forces unless—
(a)the complainant has made a service complaint about the matter, and
(b)the complaint has not been withdrawn.
(2)Where the complaint is dealt with by a person or panel appointed by the Defence Council by virtue of section 340C(1)(a) of the 2006 Act, it is to be treated for the purposes of subsection (1)(b) as withdrawn if—
(a)the period allowed in accordance with service complaints regulations for bringing an appeal against the person's or panel's decision expires, ...
(aa)there are grounds (of which the complainant is aware) on which the complainant is entitled to bring such an appeal, and
(b)either—
(i)the complainant does not apply to the Armed Forces Commissioner for a review by virtue of section 340D(6)(a) of the 2006 Act (review of decision that appeal brought out of time cannot proceed), or
(ii)the complainant does apply for such a review and the Commissioner decides that an appeal against the person's or panel's decision cannot be proceeded with.
(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5)The making of a complaint to an employment tribunal in reliance on subsection (1) does not affect the continuation of the procedures set out in service complaints regulations.
(6)In this section—
Cases considering section 121 9
[2026] EWCA Civ 8 · 15 January 2026Limits
The court interpreted section 121 as imposing a prior-service-complaint condition on Employment Tribunal jurisdiction, without itself discriminating contrary to Convention rights. (see paras [94]-[95]; [102])
The court held that the provision requires a service complaint to have been made and not withdrawn before the Employment Tribunal has jurisdiction. It rejected reading in an exception for matters excluded from the service-complaints process. (see paras [29]; [51]-[52]; [95]; [102])
The court held that the Employment Tribunal erred in adding this subsection because it reversed the statutory effect of section 121. (see paras [40]; [54]; [102])
Cited only.
The court described these provisions as defining when complaints under the earlier service-complaints procedures were treated as withdrawn. (see para [29])
The court noted that this provision was repealed by the 2015 Act. (see paras [31]-[32])
The court noted that this provision was repealed by the 2015 Act. (see paras [31]-[32])
The court noted that making an Employment Tribunal complaint does not affect continuation of service-complaints procedures. (see paras [29]; [32])
The court noted that the provision defines the 2006 Act and service complaints regulations for section 121. (see para [32])
[2024] EAT 165 · 14 October 2024
Section 121 makes a valid, unwithdrawn service complaint a condition of Employment Tribunal jurisdiction for acts done while serving. Read with the service-complaint legislation, it excludes a free-standing Tribunal claim about matters which cannot be made the subject of a service complaint. (see paras [49]; [96]-[105])
[2024] EAT 161 · 30 September 2024
Section 121(1) requires a serving member to have made a service complaint about the matter and not to have withdrawn it. The claimant met the first condition and had not actually withdrawn her complaint. (see paras [27]; [47])
The deemed-withdrawal provision did not apply. Its operation depended on an opportunity to appeal or seek Ombudsman review, which had not arisen because no compliant notification of inadmissibility and reasons had been given. (see paras [28]; [47]-[50])
What each judgment says about section 121 is in the case-law panel in the full Act.
395.This section establishes that, before bringing a claim under the work provisions of the Act to an employment tribunal, a member of the armed forces must raise his or her complaint through the armed services internal complaints procedure and not withdraw that complaint. If the complainant fails properly to progress his or her internal complaint then it may, in certain circumstances, be treated as if it had been withdrawn. The internal service complaint procedures do not have to be concluded before the complainant brings a claim to an employment tribunal.
396.This section is designed to replicate the effect of provisions in the previous legislation.