XA v The Royal Navy - Ministry of Defence PRELIMINARY HEARING — 2020

The claimant, a gay serving member of the Royal Navy, brought a claim under section 19 of the Equality Act 2010 arising from the accommodation arrangements applied to him after his assignment to Ministry of Defence premises at Abbey Wood in July 2017. The respondent's policy, JSP 446, provided Substitute Service Family Accommodation (SSFA) with two choices of property for personnel in marriages or civil partnerships living with their spouse or civil partner, and Substitute Service Single Accommodation (SSSA) with one choice for those who were single, or married or in a civil partnership but not living with their spouse or civil partner.

The respondent applied for strike out under Rule 37, relying on paragraph 18(2) of Schedule 9 of the Equality Act 2010 as a complete defence to any claim of indirect discrimination based on sexual orientation. The tribunal rejected the argument that the issue was merely the choice of accommodation rather than the provision of accommodation itself. It held that the provision of accommodation in this context was pay within Article 157 EC because it was an in-kind employment-related benefit connected with the claimant's readiness to make himself available for work at the relevant location.

Having found that the accommodation benefit fell within the scope of EU non-discrimination law, the tribunal held that paragraph 18(2) was incompatible with Articles 1 and 2(a) of the Framework Directive and Article 21 of the Charter. It concluded that the provision could not be interpreted compatibly and would have to be disapplied if the claimant proves indirect discrimination at the final hearing. The tribunal therefore dismissed the respondent's strike-out application, while leaving group disadvantage, individual disadvantage and justification for determination on the facts at final hearing.