At a time when the UK’s membership of the European Convention of Human Rights (“ECHR”) and our domestic Human Rights Act 1998 (“HRA”) is a hot political topic, it is timely that the Employment Appeal Tribunal (“EAT”) has handed down a judgment considering Article 6 ECHR in relation to special time limit provisions for discrimination complaints brought by those in the Armed Forces: Duncan v Ministry of Defence.
In this case the Employment Tribunal (“ET”) determined they had no jurisdiction to hear Ms Duncan’s complaint due the interplay of the Ministry of Defence (“MoD”) internal service complaints procedure and the ET’s jurisdiction as dictated by s.121 Equality Act 2010 (“EqA”). With the assistance of Sarah Dureau of Bower & Bailey Solicitors and Caroline Musgrave of Cloisters, funding was secured from the Equality and Human Rights Commission (“EHRC”) to successfully appeal against the ET judgment as relying on a reading of s.121 EqA that was inconsistent with Ms Duncan’s rights under Article 6 ECHR.
The importance of the Duncan decision can only be understood properly in the context of the internal rules and procedures by which discrimination complaints in the Armed Forces can be brought and their inter-relationship with jurisdiction in, and access to, the employment tribunals.
Discrimination complaints and the Armed Forces
‘Employment’ discrimination claims in the armed forces may be determined by Employment Tribunals subject to compliance with the armed forces own internal complaints procedures and the special jurisdiction and time limit provisions of s.121 EqA.
The internal complaints procedure and section 121 EqA is subject to potential amendment in the current Armed Forces (Service Complaints and Financial Assistance) Bill [HL] 2014-15, however at present the procedure is as contained in Armed Forces Redress of Individual Grievances (Procedures and Time Limits) Regulations 2007 and JSP 831. These provisions contain detailed procedures and time limits but in brief the interrelationship between these Regulations and sections 121 and 123 EqA is as follows:
- A member of the armed services must make a complaint to a “prescribed officer”;
- That complaint is then investigated;
- After the complainant receives the outcome they may appeal to the next level up within a prescribed period of time (there are three levels);
- The member of the armed services must bring a claim before the Employment Tribunal within 6 months of the act complained of regardless of whether or not the service complaint procedure has been concluded;
- The Employment Tribunal have jurisdiction to determine the complaint provided that the complaint has not been withdrawn from the internal procedure or deemed to have been withdrawn essentially due to a failure by the complainant to pursue the internal procedure in accordance with the regulations.
Previous article 6 issues and withdrawn complaints
Jurisdiction provisions have been very strictly construed. The Court of Appeal in Molaudi v Ministry of Defence  ICR D19 (EAT) (and  EWCA Civ 576) made clear that if a service complaint is submitted late in the internal procedure (and thereby automatically rejected) the ET will never have jurisdiction. This strict approach was challenged on Article 6 grounds, on the particular facts, in CL Williams v Ministry of Defence  EqLR 27 (EAT) (and  EWCA Civ 626) (Nathaniel Caiden and Declan O’Dempsey instructed by the Claimant). It was argued on behalf of the Claimant that her Article 6 rights had been infringed because the future respondent to a potential claim could effectively prevent the ET from ever having jurisdiction. Ms Claire Williams had never received her outcome letter, so had never been able to appeal to the next level up internally; she only found out that the letter had been sent during the course of litigation when the MoD sought to raise the jurisdiction point. The MoD maintained in its defence that the letter had been sent and was received. It therefore appeared that if she sought to appeal under the complaints procedure, she would be inevitably told she was out of time leading to her being debarred from the ET. The courts determined there was no breach of Article 6. One of the key considerations was that Ms Claire Williams’ correct route in these circumstances would be to appeal the outcome letter and pursue the course of judicial review if (as assumed) the MoD rejected it for being out of time.
The unsatisfactory nature of judicial review and the armed forces complaints procedure was further challenged by John Horan in a later ET claim by a member of the armed services. This case highlighted the problems with the internal procedure which took an inordinate amount of time for complaints to be dealt with (lasting sometimes several years). The Service Complaints Commissioner for the Armed Forces, Dr Susan Atkins, appears to accept several such criticisms. In her written evidence (on 11 February 2011) before the Select Committee on the Armed Forces Bill it was stated that:
- the Service Complaints Commissioner is “powerless to ensure that individual cases are dealt with properly, within a reasonable time and fairly” (at [1.2]);
- Service Complaints Panels, which deal with complaints referred to the Defence Council, are not themselves independent (at [5.4]-[5.5]);
- and particularly pertinent to any alleged right under Article 6 , “an independent and impartial tribunal could be confounded by the Service [the MoD] acting as gatekeeper to such a tribunal” (at [5.5]).
Duncan v MoD
It is in this context that the EAT decision in Duncan v Ministry of Defence becomes so critical. Before the ET, the MoD had succeeded in striking out the claim for want of jurisdiction: although the claim had been brought within 6 months of the act complained of and Ms Duncan had submitted a prior service complaint, the service complaint had not yet reached the Defence Council at the time when the claim was presented. The MoD argued that as the complaint had not reached the Defence Council before presenting the ET1, the service complaint must be deemed “withdrawn” in accordance with a literal reading of s.121(2) EqA; accordingly, the ET were obliged to strike the claim out. This was not the first time the MoD had pursued the same argument on jurisdiction. At least one other case is known of where the ET did not accept their submissions and refused to strike the case out.
By the time the case reached the EAT, the MoD changed its position and accepted that the appeal should be allowed. The EAT emphasised that a purposive construction to s.121(2) Equality Act 2010 was needed in order to comply with Article 6, stating at -
 Having taken the opportunity to consider the operation of the service complaints process further, the Respondent’s position has changed. As stated in the letter to the Employment Appeal Tribunal from the Treasury Solicitor of 1 April 2014, the Respondent now accepts that:
“… a purposive construction of s. 121 [is] required to achieve a lawful balance between the statutory aim to enable the Armed Forces to determine complaints internally prior to litigation and a complainant’s right of access to a Court/Tribunal within a reasonable time.”
 That must be right. Given the agreement that has been reached between the parties, I am reluctant to expand greatly on the reasoning in this Judgment but it is apparent that the point raises issues of how the service complaint process is compatible with a complainant’s Article 6 Convention rights to “a fair and public hearing within a reasonable time by an independent and impartial tribunal …”.
 The difficulty identified can, however, be overcome by a purposive construction of the legislation in the way proposed by the Respondent:
“… it is agreed that section 121(2) should be read so as to operate as a jurisdictional bar only where the right (under the Armed Forces Redress of Individual Grievances (Procedure and Time Limits) Regulations 2007) to make a referral to the Defence Council has arisen and is not exercised.”
. Failing to adopt such a purposive construction to the legislation in this case meant that the Employment Tribunal effectively barred the Claimant’s right to have her complaints determined by an independent tribunal within a reasonable time. For that reason, I agree that the Employment Tribunal’s Judgment cannot stand and the appeal should be allowed on this basis.
The EAT allowed the appeal as to the costs order against Ms Duncan; since her appeal had succeeded on the jurisdiction argument, the costs order was incorrect in consequence (this being founded upon there being ‘no reasonable prospect of success’ given the MoD’s argument as to jurisdiction).
Duncan highlights that despite the complexity in the relationship between the internal service complaints procedures and the EqA, ETs must have proper regard to Article 6 and not take overly technical or ‘cheap’ jurisdictional points. The provisions must be interpreted to ensure that the interpretation of the rules is consistent with Article 6 right to a fair hearing.
Future Changes to s.121 EqA
Future complainants should not find themselves facing identical jurisdictional arguments as Ms Duncan, due to the clear guidance given by the EAT in her appeal and also due to changes to s.121 EqA proposed in the Armed Forces (Service Complaints and Financial Assistance) Bill [HL] 2014-15.
The amendments in the Bill will provide that a service complaint is treated as “withdrawn” if “(a) the period allowed in accordance with the with service complaints regulations for bringing an appeal against the person’s or panel’s decision expires” (proposed amendment to s.121(2)(a) EqA) and either
- there is no application for a review of this out of time appeal to the Ombudsmen (proposed amendment to s.121(2)(b)(i) EqA); or
- if a review has been applied for the Ombudsmen rejects that the appeal can proceed ((proposed amendment to s.121(2)(b)(ii) EqA).
This deals in part with the Duncan scenario but also deals partly with some allegations of there being no ‘external check’ on the MoD rejecting service appeals as being out of time. Of course this does not prevent other issues being raised with respect to the interplay between the service complaints procedures and the ET jurisdiction under the Equality Act 2010. Issues will arise in relation to the time taken to deal with service complaints and the likely requested stays while the internal procedure continues which could work to prevent external scrutiny by the ET. It is hoped that Tribunals will be guided by the decision in Duncan to ensure that in each new case requiring determining of jurisdiction under s.121 EqA the Tribunal will seek to achieve a lawful balance between the statutory aim to enable the Armed Forces to determine complaints internally prior to litigation and a complainant’s right of access to a Court/Tribunal within a reasonable time.
In light of all the above, I would offer the following two concluding remarks:
- Firstly, clients are advised to approach both solicitor and counsel experienced with dealing with the armed forces given the myriad of rules that can prevent an otherwise good claim progressing;
- Secondly, it is right to interpret the complex internal service complaints procedure and interplay with s.121 Equality Act 2010 through the lens of the right to a fair hearing under Article 6 ECHR. Tribunals must seek to achieve a lawful balance between the statutory aim to enable the Armed Forces to determine complaints internally prior to litigation and a complainant’s right of access to a Court/Tribunal within a reasonable time.