Factual and Procedural Background
The Plaintiff, a serving member of Her Majesty's Armed Forces holding the rank of Corporal and enlisted since 18 January 1994, brought an Employment Tribunal claim on 26 July 2013 alleging direct sex discrimination, harassment related to sex, and victimisation arising from events between 2012 and June 2013. The claim was made pursuant to the Equality Act 2010. The Plaintiff had submitted internal service complaints regarding these matters, which were under initial consideration and had not been referred to the Defence Council, the final stage in the internal complaint process.
Under section 121 of the Equality Act 2010, the Employment Tribunal's jurisdiction to hear claims by serving Armed Forces members depends on the submission of a valid internal complaint that has not been withdrawn. Section 121(2) states that a complaint is treated as withdrawn if it is not referred to the Defence Council. The Respondent objected to the Tribunal hearing the Plaintiff's claim on the basis that the internal complaints had not been referred to the Defence Council and were therefore withdrawn, depriving the Tribunal of jurisdiction.
The Reading Employment Tribunal at a Preliminary Hearing on 4 November 2013 ruled that it lacked jurisdiction and ordered the Plaintiff to pay costs to the Respondent. Both parties later agreed that this ruling was erroneous and that the costs order could not stand. The matter was appealed to the Employment Appeal Tribunal and was considered on the papers by Judge Eady QC, who approved a consent order allowing the appeal and remitting the matter back to the Employment Tribunal.
Legal Issues Presented
- Whether section 121(2) of the Equality Act 2010 should be given a purposive construction that limits the jurisdictional bar to cases where the right to refer a complaint to the Defence Council has arisen and has not been exercised.
- Whether the Employment Tribunal erred in law by striking out the Plaintiff's claim for lack of jurisdiction due to the internal complaint not having been referred to the Defence Council.
- The appropriateness of the costs order made against the Plaintiff in light of the jurisdictional error.
Arguments of the Parties
Appellant's Arguments
- The Plaintiff submitted that the Employment Tribunal had jurisdiction to hear the claim despite the internal complaint not having been referred to the Defence Council, as the right to refer had not yet arisen.
- The Plaintiff contended that the strict interpretation of section 121(2) effectively barred access to an independent tribunal within a reasonable time, conflicting with Article 6 Convention rights.
Respondent's Arguments
- Initially, the Respondent argued that the internal complaints not being referred to the Defence Council meant they were withdrawn, thus depriving the Tribunal of jurisdiction.
- Subsequently, the Respondent accepted that a purposive construction of section 121(2) was required to reconcile the statutory scheme with the Plaintiff's right of access to a tribunal within a reasonable time.
- The Respondent agreed that the Employment Tribunal's ruling was an error of law and consented to the appeal being allowed.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The court recognized that section 121 of the Equality Act 2010 requires a purposive construction to balance the statutory aim of enabling internal resolution of complaints within the Armed Forces against the complainant’s right to access an independent tribunal within a reasonable time, as protected by Article 6 of the European Convention on Human Rights.
The court found that the Employment Judge erred by interpreting section 121(2) as a strict jurisdictional bar whenever a complaint had not been referred to the Defence Council, regardless of whether the right to refer had arisen. This interpretation effectively barred the Plaintiff’s access to the Employment Tribunal prematurely.
By adopting a purposive construction, the jurisdictional bar applies only where the right to refer to the Defence Council has arisen and has not been exercised. Since the Plaintiff’s complaint was still at an early stage and the right to refer had not yet arisen, the Employment Tribunal should have retained jurisdiction.
Consequently, the Employment Tribunal’s decision to strike out the claim and the associated costs order were based on an error of law and could not stand.
Holding and Implications
The court ALLOWED THE APPEAL by consent, overturning the Employment Tribunal’s ruling that it lacked jurisdiction and the associated costs order against the Plaintiff.
The case was remitted to the Employment Tribunal for further consideration consistent with the purposive interpretation of section 121 of the Equality Act 2010 as explained in the judgment.
The Respondent was ordered to pay the Plaintiff’s costs of the appeal and those occasioned by the Respondent’s application to strike out the claim before the Employment Tribunal, with costs to be subject to detailed assessment if not agreed.
No new precedent was established beyond confirming the correct purposive approach to section 121, ensuring complainants in the Armed Forces maintain access to independent judicial review within a reasonable time.