The Court of Appeal (Bean LJ, Vice President, Peter Jackson and Elisabeth Laing LLJ) has unanimously dismissed an appeal which challenged the legislative regime regulating access of acting servicepersons to employment tribunals.
The Armed Forces Act 2006 provides for redress of wrongs incurred during service via the statutory service complaints process. The interlocking Armed Forces (Service Complaints Miscellaneous Provisions) Regulation 2015 qualifies this by preventing the making of a service complaint about alleged discrimination within the complaints process itself; this restriction thereby also prevents access to the Employment Tribunal about any such discrimination, for which the threshold requirement under s121 of the Equality Act 2010 is the making of a service complaint about that matter.
The appellant, Mrs Rubery, an RAF serviceperson, had sought to file a tribunal claim alleging discrimination by a service complaints panel when hearing her complaint, and on appeal. Though unable to satisfy the criterion for tribunal access, she argued the regime violated her Art 14 Convention rights, read with Art 6, and sought read-down of the Equality Act 2010 under s3 of the Human Rights Act 1998 to enable that claim to be brought. An employment tribunal had agreed, and performed the requested read-down; the EAT (per Stacey J) overturned the original tribunal and struck out her claim. Mrs Rubery appealed.
Rejecting that appeal, the Court (Elisabeth Laing LJ writing the lead judgment) ruled that there was no incompatibility per se between s121 of the Equality Act 2010 and Mrs Rubery’s Convention rights; there was, further, no violation of Art 14 ECHR read with Art 6 in this case looking at the regime as a whole, since the Claimant and those who enjoy access to the tribunal were not in an analogous position; or if they were, the relevant difference in treatment was justified. Furthermore, for the reasons set out by Lord Nicholls in Ghaidan v Godin-Mendoza [2004] UKHL 30; [2004] 2 AC 557, no read-down was possible: the Court was not in a position to tinker with the careful regime that Parliament and the Secretary of State had constructed, which involved balancing various policy considerations.
Ben Cooper KC and James Chegwidden of Old Square Chambers acted for the Ministry of Defence, instructed by the Government Legal Department, in this case.
You can read the full judgment here.
The livestream of this hearing can be watched here.
