Mr C Milsom (Counsel) For the v Respondent — 2022

Mrs Anne Rubery, a serving RAF officer, brought claims arising out of the handling and outcome of her service complaint, which itself concerned alleged sex discrimination, including matters said to have arisen during IVF treatment. She had made her first service complaint on 27 September 2018, amended it on 7 February 2020, and the complaint was dismissed on 30 October 2020; the appeal was dismissed on 28 April 2021 save for a finding that the delay in determining the complaint amounted to maladministration. The Service Complaints Ombudsman later upheld the maladministration complaint and recommended a moderate consolatory payment.

The respondent applied to strike out the Employment Tribunal claims on the basis that section 121 of the Equality Act 2010 and the Armed Forces service complaints regime excluded jurisdiction over complaints about the handling of service complaints. The tribunal held that, on the domestic wording alone, the claimant could not make a service complaint about decisions, appeals, or maladministration in connection with the service complaint process, so section 121 would bar Employment Tribunal jurisdiction over the process-related discrimination and victimisation complaints. It accepted that the effect may be incompatible with the EU principles of effectiveness and equivalence, but held that paragraph 3(2) of Schedule 1 to the EU Withdrawal Act 2018 prevented disapplication of the operative provision on that basis.

The tribunal then held that section 3 of the Human Rights Act 1998 permitted a Convention-compatible interpretation. Applying the Article 14 analysis it cited, and relying on Ghaidan v Godin-Mendoza, it found that service personnel and civilians were in analogous positions for complaints about discrimination in the handling of internal complaints, that access to SCOAF or judicial review did not provide an equivalent forum, and that the aim of finality within the service complaints process did not justify barring Employment Tribunal claims. It therefore read section 121 so that it did not apply to excluded complaints of this kind, dismissed the respondent's strike-out application, and directed that a further preliminary hearing would be needed to progress the case.