Armed forces discrimination claims in the employment tribunal

Thanks to Barnaby Large of No.18 Barristers Chambers for preparing this case summary.

Thanks to Laurie Anstis of Boyes Turner, who is standing in for Daniel Barnett this month.

How should the bar to bringing discrimination claims against the MOD without having first completed their internal process be interpreted?

Purposively, in the case of the statute in question, held the EAT in Duncan v MOD (HHJ Eady presiding).

By s.121 Equality Act, the employment tribunal's jurisdiction to hear claims brought by serving armed forces members is contingent on a claimant's submission of a valid service complaint, which is not withdrawn.

By s.121(2), a service complaint is 'withdrawn' if not referred to the defence council (the last stage in the complaint process).

In compliance with employment tribunal time limits, the Claimant submitted her claim to the employment tribunal before her service complaints had reached the final stage of the Respondent's process.

At a preliminary hearing, her complaints were still at the first stage and the employment tribunal held it had no jurisdiction. The Claimant appealed.

In its submissions to the EAT, the Respondent agreed with the Claimant, accepting "a purposive construction of s. 121 [is] required to achieve a lawful balance between the statutory aim to enable the Armed Forces to determine complaints internally prior to litigation and a complainant's right of access to a Court/Tribunal within a reasonable time". The EAT agreed and allowed the appeal, concluding that "section 121(2) should be read so as to operate as a jurisdictional bar only where the right ... to make a referral to the defence council has arisen and is not exercised".