Rubery v Ministry of Defence

Factual and Procedural Background

The Appellant is a long-serving member of The Military (over 30 years) and brought claims of victimisation and indirect sex discrimination to the Employment Tribunal (ET) about Company A's handling of a service complaint she made. Company A applied to strike out the claims for lack of ET jurisdiction. Employment Judge Hanning dismissed the strike-out. Company A appealed to the Employment Appeal Tribunal (EAT) before Judge Stacey, which allowed the appeal. The Appellant now appeals to this court. The Appellant also pursued internal service complaints and a complaint to Company B (the Ombudsman); Company B found maladministration and recommended a consolatory payment. The ET had attempted to read a subsection into section 121 of the Equality Act 2010 to preserve ET jurisdiction; the EAT quashed that and struck out the ET claim. This judgment considers whether section 121 (as read with the service-complaints legislative scheme) is incompatible with the Appellant's Convention rights and whether the ET could re-write section 121 under section 3 of the Human Rights Act 1998.

Legal Issues Presented

1. Whether section 121 of the Equality Act 2010, as constrained by the statutory service-complaints scheme, is incompatible with the Appellant's Convention rights (principally Article 14 read with Article 6).
2. If incompatibility arises, whether the ET was entitled under section 3 HRA to read into or otherwise reinterpret section 121 (effectively adding a subsection) so as to permit ET jurisdiction in the Appellant's case.
3. Whether serving members of the armed forces are in an analogous position to former service members or civilian employees for the purposes of Article 14 analysis, and if so, whether any differential treatment is justified.

Arguments of the Parties

Appellant's Arguments

• The ET's reading (as adopted) was correct and the EAT erred in re-writing section 121; the legislative exclusion unlawfully prevents ET jurisdiction for service-complaint handling allegations.
• The EAT narrowed the justificatory measure improperly and failed to treat the exclusion as a wholesale denial of the right to bring discrimination claims about handling of service complaints.
• The EAT erred in relying on alternative remedies (service complaints, Ombudsman, judicial review) as adequate substitutes for ET jurisdiction.
• The ET's proposed, limited read-in was a proportionate, less intrusive way to secure Convention compliance; the EAT should have applied the proportionality test (and the ET's approach better balanced rights and legitimate aims).

Company A's Arguments

• For the purposes of the appeal, Company A accepted the facts were within the ambit of Article 6 and that service status is an 'other status' under Article 14, but contended the legislative scheme (section 121 read with the Armed Forces Act and regulations) is a deliberate interlocking code designed to secure internal resolution and to limit collateral external challenges.
• The objective (protecting finality, discipline and morale, avoiding repeat or collateral proceedings) is legitimate; the exclusion is rationally connected and proportionate to that aim, and attracts a wide margin of appreciation (manifestly without reasonable foundation standard).
• Section 3 HRA cannot be used to rewrite section 121 so as to contradict a fundamental feature of the interlocking statutory scheme or to engage policy choices for Parliament/Secretary of State.

Company B (Ombudsman)'s Arguments

• Company B submitted the differential treatment is not justified and that the stated aims evolved; exclusion of ET jurisdiction is unnecessary to protect morale or finality because Company B provides an external remedy.
• Suggested construction: broaden the meaning of "service complaint" to include appeals and Ombudsman applications to achieve Convention compliance, though acknowledged this might be a strained reading and not helpful to the Appellant.
• Contended regulation 3(2) of the 2015 Regulations may not be a fundamental feature of section 121 and that Parliament may not have intended to oust ET jurisdiction in the combined way it operates.

Table of Precedents Cited

Court's Reasoning and Analysis

The court proceeded in stages. First it analysed the text and legislative context of section 121 of the Equality Act 2010 and the interlocking service-complaints scheme in the Armed Forces Act 2006 and its regulations (including amendments by the 2015 Act). Three initial points guided the reasoning: (1) section 121 on its face imposes two jurisdictional conditions (a service complaint must have been made and not withdrawn) and does not, by its text alone, breach Convention rights; (2) Parliament enacted and amended section 121 against the background of an existing service-complaints statutory scheme and regulatory exclusions; and (3) the Secretary of State's regulations show deliberate, detailed policy choices about what complaints may be barred from the service-complaint route.

The court held that the ET erred in law by attempting to re-write section 121 (adding subsection (1A)) under section 3 HRA. That power is limited: a court may only adopt a Convention-compatible reading "so far as it is possible to do so" and not in a way that contradicts a fundamental feature of the legislation or substitutes judicial policy choices for parliamentary judgment. The ET's proposed read-in would have reversed the effect of the regulatory exclusions and thereby gone against the grain of the interlocking statutory code.

On analogy under Article 14, the court concluded (disagreeing with the EAT on this point) that serving members are not in an analogous position to former service members or to civilian employees because serving members are subject to service law, operate in a disciplined force where cohesion and morale are essential, and have access to a statutory internal complaints regime and to the Ombudsman. Even if analogy were assumed, the court held that any differential treatment is justified: the aims of avoiding prolonged disputes, satellite litigation and protecting discipline/morale are legitimate, and the court should afford a wide margin of appreciation to Parliament and the Secretary of State; the scheme is not manifestly without reasonable foundation.

Accordingly, there was no basis for holding that section 121 (or the legislative scheme as a whole) is incompatible with the Appellant's Convention rights, and the ET lacked power to re-write section 121.

Holding and Implications

Holding: DISMISSED — the court would dismiss the Appellant's appeal.

Implications:

• The ET erred in law in holding section 121 incompatible with the Appellant's Convention rights and erred in adding a subsection to section 121.
• There are no grounds for a declaration of incompatibility under the Human Rights Act 1998 in respect of section 121 based on the reasoning in this judgment.
• The EAT's decision quashing the ET's judgment and striking out the Appellant's claim is upheld; the court emphasised that the allocation of jurisdiction and the detailed balance between internal service remedies and external tribunal remedies is a legislative/policy matter for Parliament and the Secretary of State, to which courts should give a wide margin of appreciation in the military context.