Case 2201755/2021 · Employment Tribunal
Nicola Braganza (counsel) For the v James Chegwidden (respondent) — 2022
- Case reference
- 2201755/2021
- Decision date
- 27 January 2022
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Stout Representations
Parties
2 namedClaimant
Nicola Braganza (counsel) For the
Respondent
Key findings
Tribunal's reasoningThe claimant, a former Royal Navy Able Seaman who had been medically discharged on 1 April 2018, brought sex discrimination, disability discrimination and victimisation claims arising from the handling of her service complaints about alleged sexual harassment. The hearing on 8 December 2021 was a remote preliminary hearing on the respondent's strike-out and deposit order applications only; no evidence was heard and the tribunal made no findings of fact on the underlying complaints.
On the argument that the whole claim was premature because the HMS Scott service complaint had been appealed to the Appeal Body, the tribunal rejected strike-out. It held that section 121 EA 2010 did not create an exclusive service-redress jurisdiction and that Parliament had not prevented Employment Tribunal proceedings from being brought before the service complaints process was complete, although the service complaint itself had to have been made and not withdrawn.
The tribunal also rejected the submission that the sex discrimination and victimisation claims were unreasonably pursued because they were, in substance, challenges to the Decision Body's handling of the service complaint. It accepted that the pleaded allegations looked similar to grounds of appeal or public law complaints, but held that in this case they were alleged detriments in the handling of the claimant's complaint. It found significant doubts about the merits, but not no reasonable prospect of success, so it refused strike-out and held that the threshold for a deposit order was met in respect of both claims.
On the disability discrimination claim, the tribunal held that paragraph 4(3) of Schedule 9 EA 2010 should be read compatibly with the Human Rights Act 1998 so that the armed forces exemption did not bar a claim by an ex-servicewoman about post-discharge conduct. It found that the claim fell within the ambit of Articles 8 and 14 ECHR, concluded that the legislation as drafted breached those rights in this context, and dismissed the respondent's strike-out application on jurisdiction. It directed a further closed preliminary hearing for the amount of any deposit order and further case management.
Claims and outcomes
3 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Disability discrimination | Preliminary jurisdiction ruling only. The tribunal dismissed the respondent's strike-out application and held that paragraph 4(3) of Schedule 9 EA 2010 should be read compatibly with the HRA 1998 so that the armed forces exemption did not bar the claimant's post-discharge disability discrimination claim. | Other | Disability | — |
| Sex discrimination | Preliminary strike-out application only. The tribunal dismissed the strike-out application, held that the claim had little prospect of success but not no reasonable prospect, and found that the threshold for a deposit order was met. | Other | Sex | — |
| Victimisation | Preliminary strike-out application only. The tribunal dismissed the strike-out application, held that the claim had little prospect of success but not no reasonable prospect, and found that the threshold for a deposit order was met. | Other | — | — |
Legal tests applied
11 references- Rule 37 strike-out test
- Rule 39 deposit order test
- Anyanwu principle
- Chandhok & Anor v Tirkey
- Madarassy v Nomura
- Ahir v British Airways Plc
- Twist DX Ltd v Armes
- Hemdan v Ishmail
- Ghaidan v Godin-Mendoza
- Stott Article 14 test
- R (Child Soldiers International) v Secretary of State for Defence
Official outcome judgment PDF
Gov.uk primary recordThe official judgment PDF on gov.uk contains the tribunal's outcome, reasoning, and any remedy details. Where this page does not yet show extracted outcomes for every claim, use the PDF as the authoritative source.
Published on gov.uk under the Open Government Licence v3.0.
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