Limits of Section 3 HRA: No “Reading-In” Disability Protection for Armed Forces Service Under Equality Act Schedule 9

1. Introduction

L & Anor v Ministry of Defence [2026] EWCA Civ 602 is a Court of Appeal (Civil Division) decision refusing permission to appeal from the Employment Appeal Tribunal (EAT) (Linden J). The applicants were former members of the armed forces: Mr L (anonymised) was medically discharged following an HIV diagnosis; Mr Dunn left under premature voluntary release and later sought to have his departure redesignated as medical discharge, contending that depression (said to have been caused by bullying) drove his exit.

Both sought to bring disability discrimination claims in the Employment Tribunal (ET) under the Equality Act 2010. The central obstacle was paragraph 4(3) of Schedule 9, which disapplies (so far as relating to disability and age) the Part 5 employment provisions to service in the armed forces. Mr Dunn also relied on section 108 (post-termination discrimination), arguing it should operate notwithstanding Schedule 9.

The applicants’ strategy was to invoke section 3 of the Human Rights Act 1998 (HRA) to “read” the Equality Act so as to permit their ET claims, contending (explicitly or implicitly) that Article 14 ECHR (non-discrimination) read with Article 8 (and, for Mr L, also Article 6) required that outcome.

2. Summary of the Judgment

The Court of Appeal (Singh LJ, with Bean LJ agreeing) refused permission to appeal. The key conclusions were:

• Section 3 HRA cannot be used to reinterpret Schedule 9 paragraph 4(3) (or section 108) in a way that would create ET jurisdiction over disability discrimination claims arising from armed forces service; doing so would be judicial legislation and would go against the “grain” of the Equality Act (paras 37–38).
• Although there is judicial caution about deciding section 3 issues without deciding the underlying Convention incompatibility (“cart before the horse”), in these cases the applicants had agreed the procedural course below; they could not sensibly complain on appeal that the ET/EAT failed to decide other issues (paras 39–40).
• The Court declined to entertain a declaration of incompatibility under section 4 HRA at the permission stage because necessary factual findings and broader proportionality evidence were not available; remittal would be inappropriate given the procedural history and the absence of any error of law below (paras 41–43).
• The decision, though on permission, was certified as citable due to the general importance of the issues (para 44).

3. The Legal Context

3.1 Equality Act 2010: Armed forces exclusion

Paragraph 4(3) of Schedule 9 provides that, so far as relating to age or disability, Part 5 does not apply to service in the armed forces. The ETs treated this as excluding substantive causes of action in the ET for the applicants’ disability discrimination complaints arising out of service.

3.2 Post-termination discrimination: Section 108

Section 108 addresses discrimination occurring after a relationship has ended, where the conduct would have been unlawful during the relationship. Mr Dunn sought to use section 108 to reach a refusal to redesignate his discharge, but encountered the same Schedule 9 disapplication, since the relevant “during relationship” unlawfulness was itself removed for armed forces service.

3.3 Human Rights Act 1998: Sections 3 and 4

Section 3 HRA requires courts/tribunals, so far as possible, to read and give effect to legislation in a way compatible with Convention rights. Section 4 HRA empowers certain higher courts (including the Court of Appeal, but not ET/EAT) to make a declaration of incompatibility if compatible interpretation is not possible.

4. Analysis

4.1 The “reading-in” issue: why section 3 could not do the work

The applicants proposed “reading-in” solutions that would, in substance, carve out (Mr L) or circumvent (Mr Dunn) the armed forces disability exclusion. The Court of Appeal held this was not “interpretation” but would be “tantamount to judicial legislation” (para 37).

The Court’s core reasoning tracks a well-established section 3 boundary: section 3 is “strong and unusual” (para 37), but it cannot be used to:

• produce a meaning that is the opposite of what the statutory text says (para 37);
• override what the Court viewed as a fundamental feature of the legislative scheme, here the long-standing parliamentary decision to exclude disability discrimination rules from armed forces service (paras 37–38);
• resolve wide-ranging policy questions inherent in determining the extent and circumstances of any armed forces disability regime, which the Court treated as matters for Parliament (para 38).

Importantly, the Court did not decide whether the exclusion is Convention-compliant; it held that even if incompatibility were assumed, the proposed interpretive solutions were impermissible because they would reshape the Equality Act’s architecture.

4.2 Compatibility first vs section 3 first: the “cart before the horse” problem, and why it did not assist these applicants

Singh LJ expressed sympathy for the view that the better analytical order is to decide the compatibility question before the section 3 question (“against my instincts” was Linden J’s phrasing in the EAT, echoed by Singh LJ: paras 13, 39). The Court noted authorities “cast doubt” on deciding matters in the reverse order (para 39).

However, the decisive procedural feature was that the parties had agreed in the ET/EAT that section 3 could be determined first and would be determinative. Against that background, the Court held it was not reasonably arguable that the tribunals erred in law by not also deciding compatibility, remittal, or “violation” issues (para 40). The applicants were, in effect, held to their chosen procedural posture.

4.3 Declarations of incompatibility on a permission appeal: why section 4 relief was not realistically available here

The Court accepted in principle that appellate courts can reach section 4 issues even where lower tribunals could not (it cited Mercer v Alternative Future Group Limited (Secretary of State for Business and Trade intervening) [2024] UKSC 12 as an example: para 41). But it declined to do so on these facts.

Two interlocking constraints drove the outcome:

• Fact-finding deficit: especially in Mr Dunn’s case, the ET made no findings sufficient to determine whether Articles 8/14 were engaged or whether any differential treatment was justified (para 42).
• Evidence deficit for proportionality of a general measure: the proportionality assessment would not be limited to the applicants’ circumstances; it would involve the proportionality of a primary legislative measure excluding claims in armed forces service and might require evidence about wider operational and systemic implications (para 42).

The Court considered remitting compatibility issues to the ET the “only realistic outcome” if permission were granted on section 4, but held that would be inappropriate where (i) the appeals otherwise had no real prospect of success, and (ii) the situation flowed from tactical decisions made below (para 43). In short, section 4 could not be used to reopen the litigation architecture the applicants had previously accepted.

4.4 The ECHR merits left unresolved (but clarified in outline)

Although no final determination was made, the decision is notable for recording (and, at points, aligning with) approaches taken below:

• Article 6 ambit: both the ET and Linden J took the view that Article 6 presupposes an existing “civil right”, and where the Equality Act does not confer a right not to be discriminated against on grounds of disability in armed forces service, Article 6 may not be engaged (paras 6(1), 15(2), 33).
• Article 8 ambit: the ET in Mr L’s case indicated Article 8 was within Article 14’s ambit; Linden J assumed it without deciding, and doubted engagement on Mr Dunn’s facts given the pension-driven redesignation context (paras 6(2), 15(3)).
• Comparator: the ET in Mr L’s case suggested the comparator was another armed forces member bringing (say) a race discrimination claim (i.e., a protected characteristic not excluded); Linden J suggested the comparator class would be those protected in work and occupation generally (employees) (paras 6(3), 15(4)). The Court of Appeal did not resolve this divergence.
• Justification: operational effectiveness of the armed forces was accepted as a legitimate aim. Proportionality was repeatedly flagged as fact-sensitive and evidence-dependent and was not decided (paras 6(5)–(6), 15(6), 25–26, 42).

4.5 Precedents cited and their influence

The judgment’s cited authorities function less as substantive equality precedents and more as procedural/constitutional signposts about the section 3/section 4 relationship, litigation sequencing, and appellate restraint.

• R(Z) v Hackney London Borough Council [2020] UKSC 40 and R (McConnell) v Registrar General for England and Wales [2020] EWCA Civ 559: relied upon by the applicants for the proposition that section 3 interpretation is tethered to identifying a Convention violation on an “ordinary reading”. The Court did not dispute their general direction but held the applicants could not, after agreeing the sequencing below, recast the failure to decide compatibility as an error of law warranting permission (paras 22–23, 40).
• Z v United Kingdom (2001) 34 EHRR 97, Poplar Housing & Regeneration Community Association Limited v Donoghue [2001] EWCA Civ 595, and R (Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605: cited for judicial caution about addressing section 3 without first determining whether a Convention incompatibility exists (“cart before the horse”). Their practical impact here was limited to an acknowledgement that the applicants’ preferred procedural criticism had some support in authority, but could not overcome the agreed procedural history and the determinative failure of the section 3 case (para 39–40).
• Singh v Dass [2019] EWCA Civ 360: invoked (especially against Mr Dunn) to resist allowing a materially new point to be taken on appeal, inconsistent with the case run below (para 35(4)). While Singh LJ did not decide the appeal on this authority alone, the judgment’s emphasis on tactical choices reflects that appellate posture.
• Mercer v Alternative Future Group Limited (Secretary of State for Business and Trade intervening) [2024] UKSC 12: used to demonstrate that declarations of incompatibility can be addressed at higher level even if not available below. The Court distinguished the present case on the basis of missing findings and evidence and the inappropriateness of remittal at the permission stage (paras 41–43).

4.6 Impact

Despite being a refusal of permission, the decision is explicitly certified as citable (para 44) and is likely to be relied on in three ways:

1. Section 3 boundary-setting in equality contexts: where Parliament has adopted an entrenched structural exclusion (here, disability and age discrimination rules for armed forces service), courts are unlikely to accept section 3 “reading-in” that reverses the exclusion’s effect.
2. Litigation sequencing and party choices: parties who agree that a section 3 issue is determinative risk being held to that agreement on appeal, even if later authority suggests the compatibility-first sequence is preferable.
3. Section 4 practicality: even where the Court of Appeal has section 4 power, it may refuse permission if incompatibility arguments require a fact-finding and evidence-gathering exercise that the chosen procedural route below did not generate—particularly where the proportionality of a general legislative measure is in issue.

The judgment leaves open (and thereby preserves for a differently pleaded and evidenced case) the substantive question whether Schedule 9 paragraph 4(3)’s disability exclusion is compatible with Articles 8 and 14 (and possibly Article 6). But it signals that any such challenge must be procedurally engineered from the outset to produce findings and evidence suitable for a proportionality assessment of primary legislation.

5. Complex Concepts Simplified

“Section 3 reading”

A court must interpret legislation compatibly with human rights “so far as possible”. But it cannot rewrite an Act to implement a new policy choice. If the proposed reading makes the law mean the opposite of its text or dismantles a central feature of the scheme, it is likely to be rejected.

“Declaration of incompatibility” (section 4 HRA)

A higher court can formally declare that an Act of Parliament is incompatible with the ECHR. The Act remains valid unless and until Parliament changes it. Courts often need a solid factual platform (and evidence on justification/proportionality) before making such a declaration.

“Ambit” of a Convention right

Article 14 is not a free-standing right; it applies only if the facts fall within the scope (“ambit”) of another Convention right (such as Article 8 or 6), even if that other right is not itself breached.

“Comparator” in Article 14

To assess discrimination, the court asks: who is in a relevantly similar position but treated differently? In this case, possible comparators included (i) other armed forces personnel bringing discrimination claims on characteristics not excluded, or (ii) civilians/employees protected from disability discrimination in work.

“Cart before the horse”

A shorthand for deciding whether a Convention-compliant interpretation is possible (section 3) before deciding whether the ordinary reading of the statute is actually incompatible. Courts often prefer the opposite order, but pragmatism and party agreement sometimes drive sequencing.

6. Conclusion

[2026] EWCA Civ 602 confirms a robust limit on section 3 HRA in the face of a clear and long-standing statutory exclusion: the courts will not “read in” disability discrimination protections for armed forces service where Parliament has expressly disapplied them, because doing so would invert the legislative scheme and require policy decisions reserved to Parliament (paras 37–38).

Procedurally, the case underscores that parties who agree to treat a section 3 issue as determinative may be prevented from later insisting that tribunals should have decided compatibility and justification issues too (para 40). And even though the Court of Appeal is the first forum with section 4 powers, it may decline to entertain incompatibility arguments on permission where the record lacks necessary findings and proportionality evidence (paras 41–43).