Wednesday, 21 October 2009


[Thanks to Chris Milsom of St Philips Chambers for preparing this case summary]

The EAT (Cox J) has handed down its decision in Ministry of Defence v Debique, an indirect discrimination claim. The decision serves as an illustration of the tribunal adopting a practical approach to the doubly disadvantaged claimant and exemplifies a robust attitude towards the state as employer.

In dismissing the appeal, it was held that the Claimant, a female soldier from St Vincent with childcare commitments, had been the victim of sex and race discrimination by reason of two provisions:- (a) requiring that she be available for deployment on a 24/7 basis ('the 24/7 PCP'); (b) prohibiting her from inviting a member of her extended family not of British origin to stay with her in Services Family Accommodation (and thereby assist with childcare) ('the immigration PCP'):
  • the EAT agreed that the combined effect of the PCPs should be assessed; "discrimination is often a multi-faceted experience" and should not be artificially compartmentalised;
  • the MoD could not argue that this was a collateral attack upon immigration rules since discrimination arose out of the course of employment (under Pt III RRA) and the Crown (including the Home Office and MoD departments) was to be treated as a single entity. Parliament did not intend to remove the jurisdiction conferred by RRA and ERA 1996 where indirect discrimination arises from the exercise of functions by a different governmental department;
  • it was immaterial that the immigration PCP was not applied by the Crown in its capacity as an employer since there was no requirement for this gloss to be put on RRA
  • this was not a frontal assault on immigration rules but the application of those to the Claimant through the MoDs own policies.

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