Mr A Line, Counsel For the v Respondent — 2025

Mr Keelan Swords, then a University of London Officer Training Corps cadet and Group B Reservist, brought disability discrimination and harassment claims arising from two unsuccessful attempts to pass the Army Officer Selection Board Assessment in August 2022 and October 2023. The pleaded complaints were breach of the duty to make reasonable adjustments, indirect disability discrimination, harassment related to disability, and discrimination arising from disability. No oral evidence was heard; the tribunal proceeded on the claimant's witness statement and the parties' submissions.

The tribunal held that Schedule 9 paragraph 4(3) Equality Act 2010 means on its face that Part 5 of the Act does not apply to service in the armed forces so far as it relates to disability, and therefore the Employment Tribunal had no jurisdiction to consider the claim unless the provision could be read compatibly with the European Convention on Human Rights. It accepted that the claimant had "other status" for Article 14 purposes and that the circumstances were within the ambit of Article 8 because the exclusion affected his professional and social position and his ability to progress to officer training.

Applying the Article 14 justification analysis, the tribunal accepted combat effectiveness as the aim and held the measure was rationally connected to that aim. However, it found the respondent had provided no evidence about the impact on combat effectiveness of disability discrimination protections, concluded that less intrusive measures could have been used, and held that a fair balance had not been struck. It therefore found Schedule 9 paragraph 4(3) breached the claimant's Convention rights.

The tribunal nevertheless held that section 3 Human Rights Act 1998 could not be used to read the provision in a Convention-compliant way because that would be inconsistent with a fundamental feature of the statutory scheme. It therefore concluded that the claim remained excluded by Schedule 9 paragraph 4(3) and dismissed it for lack of jurisdiction. No monetary award was made.