On 14 October 2024, the Employment Appeal Tribunal (per Mrs Justice Stacey) handed down judgment in Ministry of Defence v Rubery [2024] EAT 165. The appeal concerned the Employment Tribunal’s jurisdiction under the Equality Act 2010 to consider complaints by active service personnel about decisions made within, and alleged maladministration in connection with the handling of, the statutory Armed Forces service complaints process for redress of service complaints. Allowing the Ministry of Defence’s appeal, Mrs Justice Stacey ruled that the UK’s exclusion of such challenges from Tribunal jurisdiction did not violate such servicepersons’ Article 14 Convention rights read with Article 6, as the measure was justified. Nor would a proposed read down of the impugned provisions be possible under s.3 of the Human Rights Act 1998, because such read down went directly against the grain of the legislation: see Ghaidan v Godin-Mendoza [2004] 2 AC 557 SC at [33].
Further, dismissing the claimant’s cross-appeal, Stacey J found that the European Union (Withdrawal) Act 2018 at the applicable time prevented the claimant’s proposed reading down of the legislation, since the read down proposed impermissibly “disapplied” an enactment and went beyond mere interpretation (see Schedule 1 para 3(2)(a) European Union (Withdrawal) Act 2018.)
The full judgment can be read here.
Ben Cooper KC and James Chegwidden of Old Square Chambers acted for the Appellant, the Ministry of Defence, and were instructed by the Government Legal Department.
