The claimant, a member of the British Armed Forces who was originally from Dominica, filed a service complaint, stating that she had experienced a sequence of events post-surgery which amounted to “a failure of duty of care ... unfair and unnecessary intimidation ... culminating in an unjustified recommendation for non-retention in the service, based on prejudiced evidence”. The claimant then filed a claim in the employment tribunal for race discrimination, which she subsequently applied to amend to add claims for sex discrimination, harassment related to sex and victimisation. The tribunal claims concerned the same events as the service complaint, although the service complaint did not refer explicitly to race or sex discrimination, harassment related to sex, or victimisation. The employment tribunal found that it had no jurisdiction to hear the claim or the proposed further claims because the claimant, as a member of the armed forces, had not first made a service complaint “about the matter”, as required by section 121(1)(a) of the Equality Act 2010.
On the claimant’s appeal—
Held, the appeal was dismissed. The effect of section 121(1)(a) of the Equality Act 2010 was that the tribunal did not have jurisdiction to determine a complaint relating to “an act done when the complainant was serving as a member of the armed forces” unless “a service complaint about the matter” had been made. The wording of section 121 made clear that the “matter” about which the service complaint had to be made was the complaint to the tribunal relating to “an act done when the complainant was serving as a member of the armed forces”. Accordingly, section 121 required there to be a sufficient link between the “act(s) done” that were complained of in the tribunal claim and the content of the service complaint. The question whether the act complained of in the tribunal claim was “the matter” raised in the earlier service complaint had to be approached by identifying the substance of the service complaint, reasonably read and assessed as a whole. The service complaint did not have to use the words “discrimination”, “harassment” or “victimisation”, or refer to the relevant protected characteristic/s by the terminology used in the 2010 Act, or use the phrase “protected act”. However, for the purposes of section 121, a complainant had to indicate in their service complaint that they were making allegations of discrimination or harassment based on one (or more) of the applicable protected characteristics under the 2010 Act or that they were making a complaint of victimisation. In the present case, the tribunal had correctly identified what section 121 required and had carefully considered the detail of the claimant’s service complaint in the context of the proposed amended claims and the original claim. It had permissibly concluded that the text of the service complaint did not include anything which could fairly be said to have been an allegation that the claimant had been treated in the manner complained of because of her sex, had been subjected to harassment related to her sex, had made a complaint about unlawful discrimination and been treated badly as a result, or had been treated adversely because of her race (paras 86, 89, 91, 92, 99, 103, 121).
Per curiam. Section 121 of the Equality Act 2010 does not render access to the employment tribunal practically impossible for members of the armed forces who wish to bring a discrimination claim in respect of events during their service and nor is the very essence of the right of access impaired. A member of the armed forces is able to bring a tribunal claim for discrimination, harassment and/or victimisation provided they have raised a service complaint about those matters (para 121).
Matthew Shankland, solicitor of Sidley Austin LLP, for the claimant.
Adam Tolley KC, Julian Allsop and Anna Williams (instructed by Treasury Solicitor) for the respondent.