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Exclusions: armed forces, illegal contracts

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Last updated 5th December 2017 (part update 16th July 2022).

Members of the armed forces are excluded from disability discrimination provisions while serving, but support is available. Also employers sometimes have a defence if the employment contract is illegal, and there are limited exceptions for charities.

Summary

  • Members of the armed forces are excluded from the Equality Act employment provisions on disability. However they may be able to claim for discrimination which happens after discharge
  • There is a Defence Stammering Network which supports people who stammer in the armed services, military and civilian.
  • Ministry of Defence civilian employees, without a rank, should still fall within the Equality Act.
  • If the employment is illegal, it may sometimes give the employer a defence to an Equality Act claim. Below Illegal contracts.

Exclusion of the armed forces

Service in the armed forces is excluded from the Equality Act employment provisions on disability (EqA Sch 9 para 4(3)). However:

The Government has said the exclusion is

“because Armed Forces personnel need to be combat effective in order to meet a world-wide liability to deploy, and to ensure that military health and fitness remain matters for Ministry of Defence Ministers based on military advice, not for the courts.”

An amendment challenging the exclusion was resisted by the Government in the House of Commons Committee on the Equality Bill (col 346-349, Hansard, Public Bill Cttee, 18th June 2009 (UK Parliament website)) and also in the House of Lords Committee (from col 1278 HL Hansard 25th Jan 2010 (UK Parliament website)).

In 2009 the UK government maintained its position by entering a reservation on service in the armed forces in its ratification of the UN Disability Convention – see Hansard, Statement 13th May 2009 ‘Disabled People: UN Convention’ (parliament.uk) from where the quote above is taken.

Support for stammering in the armed services

There is a Defence Stammering Network which is an internal network of support for stammering in the armed forces. It is open to both military and civilian employees of UK defence. See Employment stammering networks>Defence Stammering Network.

Claims possible after discharge from armed services?

An employment tribunal in T v Ministry of Defence, 2021 has held that under the Human Rights Act the Equality Act must be re-interpreted to permit disability discrimination claims by ex-servicemen and women in respect of discrimination occuring after discharge from the armed forces. They could claim subject to the normal rules for former workers in s.108 EqA: Former employees/ workers.

On the face of the Equality Act, Sch 9 para 4(3) also excludes claims by former workers under s.108. However the tribunal held that as regards former members of the armed forces, this breached Article 14 of the European Convention on Human Rights. It was unjustified because the purpose of the exclusion in para 4(3) was to protect combat effectiveness, but that purpose no longer applied once someone had been discharged.

As an employment tribunal decision, it is not binding on other tribunals. However the fact the decision is there – apparently well-argued by the tribunal – seems likely to encourage other tribunals to follow it.

‘Employment services’ related to the armed forces

Work experience in the armed forces is also excluded from Equality Act protection (EqA Sch 9 para 4(3)).

‘Employment services’ include such things as careers guidance, vocational training, and employment agencies (EqA s.55, 56, Employment Code para 11.59). Some protection for ’employment services’ relating to the armed forces is excluded by EqA Sch 9 para 5, and some is not. For example, it seems that ’employment services’ relating to the armed forces are still within the Equality Act as regards the reasonable adjustment duty on employment service providers and harassment by them.

Various exclusions abolished in October 2004

Various jobs which used to be excluded were brought within the DDA, now the Equality Act, from October 2004. Examples are prison officers, fire-fighters, police officers, and offers of partnership.

Need to make ‘service complaint’ before EqA claim

Even where an EqA claim is not excluded, if the complaint relates to an act done when the complainant was serving as a member of the armed forces, the complaint must first make a service complaint: s.121 EqA. (I’m not sure s.121 is relevant for disability discrimination claims, but mention it in case.)

The service complaint must sufficiently refer to the particular discrimination: Edwards v Ministry of Defence (bailii.org), EAT, 2024.

Illegal contracts

Where the employment contract or performance of it is illegal, this can sometimes give the employer a defence to an Equality Act claim.

However, illegality is more likely to defeat an unfair dismissal claim, for example, than an Equality Act claim.

Hounga v Allen, (bailii.org), Supreme Court, July 2014
The employer helped the claimant to enter the UK illegally when she was 14, with the claimant’s knowing participation. The claimant worked as an au pair, and was subject to serious physical abuse. She was told that if she left the home she would be imprisoned because her presence in the UK was illegal. She was then forcibly evicted. She brought various claims, including under the Race Relations Act (now the Equality Act). Her contract of employment was illegal under immigration legislation. Neverthess, the Supreme Court held she could claim discrimination. There was no ‘inextricable link’ between the claimant’s illegal conduct and the actions complained of, if that was the relevant test. But the majority of the Supreme Court considered the illegality defence in the context of concern to preserve the integrity of the legal system. The majority found that the considerations of public policy in favour of the defence scarcely existed in the present case, and also that to the extent they did exist, they should give way to the public policy of combatting trafficking and protecting its victims.

Charities etc

There are also certain exceptions relating to disabled charities and to supported employment (s.193 EqA).

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