In person For the v Respondent — 2023

Mr Walsh alleged that his discharge from the RAF on 3 August 1975 was direct discrimination because he was perceived to be homosexual. He had served from 26 September 1963, did not bring a claim at the time, and later submitted a compensation claim to the Ministry of Defence on 5 January 2021 after a 2020 medical diagnosis prompted him to re-evaluate matters. The MoD replied on 20 April 2022, saying that the discharge had been lawful at the time, although the account described would not be countenanced today.

The Tribunal dismissed the claim as a preliminary issue for lack of jurisdiction. Employment Judge Stout held that the Equality Act 2010 did not apply because the complained-of act occurred wholly before 1 October 2010 and was not continuing on that date, and that the Employment Tribunal had no jurisdiction under the Employment Equality (Sexual Orientation) Regulations 2003 because those Regulations did not make pre-1 December 2003 conduct unlawful. The judgment also recorded that the Sex Discrimination Act 1975 could not assist the claimant, including because it did not apply to armed forces service until 1 February 1995.

A second jurisdictional reason was that the claimant had not made a valid service redress complaint accepted as valid by the MoD before starting proceedings. The Tribunal held that he was not entitled to make such a complaint about a 1975 discharge and that the MoD had treated his approach as a historic complaint rather than a valid service complaint. The Tribunal therefore did not need to decide whether it would have been just and equitable to extend time by 47 years.