Rubery v Ministry of Defence: Section 121 Equality Act 2010—No Article 14/6 Incompatibility and No HRA s.3 “Rewrite” to Cure an Interlocking Scheme

Court: England and Wales Court of Appeal (Civil Division)  |  Citation: [2026] EWCA Civ 8  |  Date: 15 January 2026

1. Introduction

Parties and context. The appellant, Mrs Rubery, is a long-serving Royal Air Force officer. She pursued claims in the Employment Tribunal (ET) alleging victimisation and indirect sex discrimination arising not from the original workplace acts alone, but from how the Ministry of Defence (MoD) handled her service complaint (including delay, refusal of an oral hearing, and allegedly “contorted” processes).

Procedural history. The MoD applied to strike out the claims for lack of ET jurisdiction. The ET (Employment Judge Hanning) refused, holding that the jurisdictional bar created a Convention-rights problem and could be cured by “reading in” a new subsection to Equality Act 2010 s.121. The Employment Appeal Tribunal (EAT) (Stacey J) reversed and struck out the claim. Mrs Rubery appealed to the Court of Appeal.

Core legal issue. The appeal tested the interaction between (i) discrimination enforcement under the Equality Act 2010 and (ii) the armed forces statutory scheme for service complaints, including exclusions in regulations which prevented Mrs Rubery from making a further service complaint about the handling/outcome of a service complaint. The question was whether this combination produced unjustified discrimination (Article 14 + Article 6), and, if so, whether the ET could “fix” it by rewriting s.121 under Human Rights Act 1998 s.3.

2. Summary of the Judgment

The Court of Appeal dismissed the appeal. It held:

• The ET erred in law in holding that Equality Act 2010 s.121 is incompatible with Mrs Rubery’s Convention rights. Section 121, on its own, merely imposes jurisdictional conditions (a prior service complaint not withdrawn) and is not itself rights-violating.
• The “catch‑22” is a consequence of an interlocking statutory scheme (the 2006 Act as amended, and the 2015 Regulations), not something that can properly be “cured” by inserting a new subsection into s.121 via HRA s.3.
• There is no discrimination contrary to Article 14 read with Article 6 between serving personnel, former personnel, and civilians regarding ET access for complaints about the service-complaints process; serving members are not in an analogous position, and in any event any difference is justified (including under the “manifestly without reasonable foundation” approach).
• Consequently, there was no basis for any declaration that s.121 is contrary to Convention rights.

3. Analysis

3.1 Precedents Cited

Ghaidan v Godin-Mendoza [2004] UKHL 30; [2004] 2 AC 557

Role in the case. Both tribunals and the Court of Appeal treated Ghaidan as the leading authority on the scope and limits of HRA s.3 “interpretation” (including reading-in words).

Influence. The EAT relied on the “dividing line” (via Lord Nicholls) between permissible interpretation and impermissible judicial legislation—particularly whether the proposed reading contradicts a fundamental feature of the legislation or crosses into policy choices. The Court of Appeal reinforced that the ET’s insertion of a new subsection was not interpretation but re-engineering a carefully balanced legislative scheme.

R (Stott) v Secretary of State for Justice [2018] UKSC 59; [2020] AC 51

Role in the case. Cited by the ET for the limits of HRA s.3 and the restraint courts must show when compliance would require choices that belong to Parliament.

Influence. Although the ET invoked it to justify a strong s.3 approach, the appellate reasoning aligns more closely with the cautionary aspect: where policy calibration is required, the courts should not “fix” the statute by rewriting it.

RR v Secretary of State for Work and Pensions [2019] UKSC 52; [2019] 1 WLR 6430

Role in the case. Used to explain when a public authority (including a tribunal) may disregard subordinate legislation incompatible with Convention rights, subject to the coherence of the statutory scheme.

Influence. The Court of Appeal distinguished the present circumstances: there was no single “obviously incompatible” provision of subordinate legislation to ignore; the alleged incompatibility was an emergent property of multiple provisions. This reinforced the conclusion that neither disapplication nor selective “tinkering” was appropriate at tribunal level.

Steer v Stormsure [2021] EWCA Civ 887; [2021] ICR 1671

Role in the case. Cited in the ET as a comparator on the limits of interpretive expansion of tribunal jurisdiction.

Influence. The ET tried to distinguish Steer by characterising the proposed amendment as narrow. The appellate decisions implicitly reject that framing: even a “narrow” insertion that alters the statutory precondition for jurisdiction can be impermissible if it contradicts the statutory structure Parliament adopted.

Michalak v General Medical Council [2017] UKSC 71; [2017] 1 WLR 4193

P v Commissioner of Police of the Metropolis [2017] UKSC 65; [2018] ICR 560

Eckland v Chief Constable of Avon and Somerset [2021] EWCA Civ 1961; [2022] ICR 606

Role in the case. Relied on by the ET to support the proposition that the ET is the appropriate specialist forum for employment discrimination disputes, and that Ombudsman processes or judicial review are not an “adequate substitute”.

Influence. The Court of Appeal’s approach narrowed the relevance of these authorities in this military statutory context. The question was not whether an ET is generally preferable, but whether the difference in access for serving personnel is justified (and whether the statute itself is incompatible). The Court’s emphasis on the disciplined-force context and Parliament’s calibrated scheme reduces the force of arguments that alternative remedies must mirror ET processes.

Z v Hackney London Borough Council [2020] UKHL 40; [2020] 1 WLR 4327

Role in the case. The EAT referenced it when discussing the ability to address some matters “through a side wind” and assessing practical disadvantage.

Influence. The Court of Appeal did not rely on this “side wind” reasoning as decisive. Its principal reasoning turned on analogy/justification and on the structural point that s.121 is not, in itself, rights-violating.

R (Carson) v Secretary of State for Work and Pensions [2004] UKHL 37; [2006] 1 AC 173

Role in the case. Relied on by the MoD to show overlap between the “analogous situation” inquiry and justification.

Influence. The Court of Appeal adopted the practical focus: serving personnel are subject to service law and operate within a disciplined force. That difference can bear on both whether comparison groups are truly analogous and on justification.

R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26; [2022] AC 223

Role in the case. Cited for the intensity of review and the “manifestly without reasonable foundation” approach where the status is not “suspect” (unlike sex or race).

Influence. This supported the MoD’s submission, accepted by the Court of Appeal, that significant deference is due where Parliament regulates access to fora in a context involving military discipline and morale, and where the classification is not “suspect”.

Duncan v Ministry of Defence [UKEAT] 0191/14/RN, 2 October 2014

Role in the case. Discussed as an earlier EAT decision (approving a consent order) in which the MoD agreed to a “purposive” approach to s.121.

Influence. The EAT treated it as offering little guidance on principle (given its consent nature). The Court of Appeal’s reasoning similarly confirms that historic accommodations cannot justify a tribunal adopting a construction that amounts to rewriting a jurisdictional condition within a deliberately interlocking scheme.

3.2 Legal Reasoning

(a) The “incompatibility” analysis: s.121 on its own versus the interlocking scheme

The Court of Appeal’s first and most structurally important move was to separate:

• The text of s.121 (a simple precondition to ET jurisdiction: make a service complaint; do not withdraw it), from
• The emergent “catch‑22” created when other provisions (notably exclusions in the 2015 Regulations) prevent a service complaint from being made about the very matters complained of in the ET.

This allowed the Court to conclude that s.121 is not, “in itself”, incompatible with Convention rights. If s.121 is not itself incompatible, there is no basis to “read it down” under HRA s.3 by inserting a new subsection.

(b) Parliamentary knowledge and the deliberate calibration of exclusions

A second key strand was legislative history and institutional competence:

• Parliament enacted s.121 against the backdrop of the Armed Forces Act 2006 and regulations (then the 2007 Regulations) which already contained nuanced exclusions and overrides for discrimination-type complaints.
• In 2015 Parliament reformed service complaints (Part 14A), created the Ombudsman, and made consequential amendments to the Equality Act while a similarly “detailed and nuanced” exclusion scheme existed in the new regulations.

The Court treated this as evidence that the interaction between service-complaints machinery and ET access is not accidental; it is a product of deliberate legislative and regulatory design. Importantly, it was not for a tribunal to “tinker” with the balance struck by the Secretary of State in regulations (and certainly not by rewriting s.121).

(c) Article 14 + Article 6: analogous situations and justification in the military context

On Article 14, the Court accepted the MoD’s concessions on “ambit” and “status”, then focused on two questions: analogy and justification.

Analogous position. The Court disagreed with the EAT’s conclusion on analogy and held that a serving member of the armed forces is not in an analogous position to a civilian employee or former service member because a serving member:

• is subject to service law and embedded in a disciplined force;
• operates in a context where obedience, cohesion, and morale can be operationally critical;
• has access to the statutory service complaints process and Ombudsman in a way shaped by continuing service.

Justification. In case the Court was wrong on analogy, it held any differential treatment justified. It endorsed the thrust of the EAT’s justification: avoiding prolonged disputes and “satellite litigation” about the complaints process, which may undermine cohesion and morale. Since being a serving member is not a “suspect” classification, a lower-intensity review applies (including the “manifestly without reasonable foundation” approach). The Court emphasized wide deference in an area involving military structure and discipline and in a detailed statutory/regulatory scheme.

(d) The limits of HRA s.3: why the ET could not add s.121(1A)

The ET’s chosen remedy—adding a new subsection providing that s.121(1) does not apply to “excluded matters” under regulation 3(2)—was treated as an impermissible legislative act. The Court’s reasoning combined:

• No predicate incompatibility in s.121’s text requiring a s.3 remedy;
• Structural and institutional restraint: the court/tribunal is not equipped to recalibrate the exclusions and overrides in a “nuanced” scheme;
• Policy density: altering the gateway to ET jurisdiction in this area is inherently policy-laden, touching on finality, morale, discipline, and redress.

3.3 Impact

(a) For serving armed forces personnel

Serving personnel will face a reinforced barrier to bringing Equality Act claims in the ET where the alleged discriminatory act is the handling/outcome of the service complaints process itself, and where regulations exclude making a further service complaint about that handling/outcome. The decision signals that courts will treat this as a product of legislative design rather than an interpretive “gap” to be filled by tribunals.

(b) For Employment Tribunals and the EAT

The judgment is a strong corrective against tribunals using HRA s.3 to create jurisdiction where Parliament has imposed a statutory gateway condition that cannot be satisfied because of the wider statutory scheme. It also underscores the practical limitation that ET/EAT cannot issue declarations of incompatibility, and should be cautious before attempting “Convention-compliant” reconstructions that amount to rewriting.

(c) For public law and legislative design in specialist contexts

The Court’s emphasis on the “interlocking code” and deference where military discipline and morale are engaged may be deployed in future challenges to specialist statutory schemes that channel disputes away from ordinary courts/tribunals into bespoke mechanisms (e.g., ombudsman-led or internal regimes), particularly where the classification is not “suspect”.

(d) For potential reform

The judgment implicitly directs any “fix” to Parliament or the Secretary of State (through regulatory amendment), not to tribunals. If policymakers consider the “catch‑22” undesirable, the route is legislative/regulatory redesign—e.g., expanding admissibility of certain “process” complaints, or creating an explicit ET gateway after Ombudsman determination—rather than judicial insertion into s.121.

4. Complex Concepts Simplified

• Service complaint: a statutory grievance raised by a person subject to service law (or formerly subject) about “any matter relating to service,” processed under Armed Forces legislation and regulations.
• Regulatory “excluded matters” (regulation 3(2)): categories of complaint barred from the service complaints system—here, this prevented Mrs Rubery from filing a further service complaint about decisions/handling within the service complaint process.
• ET jurisdiction gateway (Equality Act 2010 s.121): for armed forces cases, the ET generally cannot hear Equality Act employment claims unless the claimant has first made a service complaint and not withdrawn it.
• Article 6 and Article 14 (ECHR): Article 6 protects access to a court for determination of civil rights; Article 14 prohibits discriminatory enjoyment of Convention rights (here, access to a tribunal) on grounds of “status.”
• Analogous situation: Article 14 generally requires showing that the claimant is relevantly comparable to others who receive better treatment. The Court held serving personnel are not truly comparable to civilians/former personnel because of service law, discipline, and operational context.
• Justification and “manifestly without reasonable foundation”: where the classification is not “suspect,” courts may apply a more deferential standard; a measure will be upheld unless it is manifestly unreasonable in light of the legislative aim.
• HRA s.3 “reading down”: courts must interpret legislation compatibly with Convention rights “so far as possible,” but cannot cross into rewriting fundamental features or making policy choices reserved to Parliament.
• Declaration of incompatibility (HRA s.4): only certain higher courts can declare that primary legislation is incompatible; ET/EAT cannot. That matters because a tribunal should not attempt to achieve by “interpretation” what is, in substance, a legislative amendment.

5. Conclusion

Rubery v Ministry of Defence affirms a restrained, structural approach to Convention-rights arguments in the face of complex statutory schemes. The Court of Appeal held that Equality Act 2010 s.121 is not itself incompatible with Article 14 read with Article 6, and that the Employment Tribunal had no legitimate basis under HRA s.3 to insert a new subsection to bypass an “interlocking” armed-forces complaints framework. On Article 14, serving members are not in an analogous position to civilians or former personnel due to the disciplined-force context and service law; and even if they were, the differential restriction on ET access for claims about the service-complaints process is justified within a wide margin of appreciation. The judgment leaves reform, if any, to Parliament or the Secretary of State—not to tribunals through creative construction.