The Equality Act 2010 (EqA) employment provisions exclude disability discrimination claims by members of the armed forces. On the wording of the EqA, such claims by former members are also excluded. Overruling a previous tribunal decision, the EAT held that the EqA cannot be re-interpreted under human rights law to allow a former member of the armed forces to claim. Refusing permission to appeal, a Court of Appeal judge considered this ‘undoubtedly correct’.
[2025] EAT 197, Employment Appeal Tribunal. Full decision: www.bailii.org/uk/cases/UKEAT/2025/197.html. (Also refusal of permission to appeal to Court of Appeal: [2026] EWCA Civ 602 www.bailii.org/ew/cases/EWCA/Civ/2026/602.html.)
Facts
Dunn v MoD
Dunn served as a soldier until February 2001, when he was discharged under the premature voluntary release provisions. Over 20 years later, in about May 2023, he requested that his mode of exit be changed to ‘medical discharge’, which was relevant to his pension entitlement. This was refused on the grounds that retrospective requests of this nature had to be brought within 12 months of discharge.
Dunn claimed under the Equality Act 2010 (EqA) that it would have been a reasonable adjustment for the MoD to vary the 12 month rule to allow his request to be considered, and that his mode of exit should have been amended accordingly.
The EqA says that as regards disability discrimination, its employment provisions do not include service in the armed forces. Dunn argued that for claims by former members of the armed forces to be excluded was incompatible with the European Convention on Human Rights, and that the EqA should be re-interpreted under the Human Rights Act 1998 (HRA) to allow disability discrimination claims by former members such as himself (The issue, below).
L v MoD
L was a soldier, but was medically discharged with effect from October 2022. He had been diagnosed with HIV in 2019. L claimed for disability discrimination under the EqA, arguing that to comply with the European Convention on Human Rights, HIV should be excluded from the provision which says that as regards disability discrimination, the EqA employment provisions do not include service in the armed forces.
Employment tribunals held that the EqA cannot be re-interpreted in the ways argued by L and Dunn. Therefore their claims could not be brought.
Held by the EAT: The appeals by both L and Dunn were dismissed. Even if the EqA were in breach of the European Convention on Human Rights in this regard (the EAT did not decide this), the EqA could not be re-interpreted in the ways they proposed. To do so would go against the grain or thrust of the legislation.
This page focuses on the claim by Dunn, where the EAT held that the EqA cannot be re-interpreted as permitting a claim for disability discrimination which occurs after discharge from the armed forces.
The issue (Dunn)
Disability discrimination claims by members of the armed forces are excluded from the EqA employment provisions by EqA Sch 9 para 4(3): Armed forces and disability discrimination>Exclusion of the armed forces. On the wording of s.108 EqA (Former employees/ workers), this means also that former members of the armed forces cannot make such claims.
Dunn argued that as held by an employment tribunal (ET) in T v Ministry of Defence, it was contrary to the European Convention on Human Rights for the EqA to exclude disability discrimination claims by former members of the armed forces. The purpose of protecting combat effectiveness no longer applied once someone had been discharged.
Under s.3 HRA 1998, UK legislation must be interpreted in accordance with the Convention ‘so far as it is possible to do so’ – broadly if the change ‘goes with the grain’ of the legislation: Enforcement of European Convention and HRA 1998>Interpreting UK legislation to comply with the Convention. In T v Ministry of Defence, the ET had re-interpreted s.108 EqA under s.3 HRA, so as to permit disability discrimination claims by disabled ex-servicemen and women. Dunn argued that the courts should re-interpret the EqA in the same way in this case.
EAT decision (Dunn)
The EAT held that even if the EqA were in breach of the Convention, in excluding former members of the armed forces from claiming disability discrimination, the EqA could not be re-interpreted to permit them to claim. The EAT quoted the test in a case called Vodafone 2. Having considered the history of the disability discrimination legislation (§§104-119), the EAT decided that this re-interpretation would be inconsistent with the grain or thrust of the EqA. The longstanding policy of Parliament had been that the relevant disability discrimination legislation did not apply to service in the armed forces (§103).
Factors in the EAT’s reasoning included:
- Discrimination protection does not apply to people generally, only in stated sectors such as employment. Because members of the armed forces are not ’employed’ in the normal sense (§10), they were always outside the scope of the Disability Discrimination Act 1995 (DDA), even without being excepted or exempted from it – though a DDA provision declared ‘for the avoidance of doubt’ that they were not included. Sex and race legislation, by contrast, did apply to the armed forces when the DDA was enacted in 1995 (§§104-106, §138). When in 2010 all protected characteristics were brought within the EqA, which aims to use generally applicable concepts and prohibitions (s.83(3) says the EqA includes the armed forces), the non-application of disability discrimination to the armed forces was expressed as an exception, but the substance of the position remained as before (§119).
- The idea of s.108 EqA and its predecessor provisions – and of the case law from which they originated – was that workers (and those in other sectors protected by the legislation) should continue to have rights after their relationship ended. But the proposed re-interpretation would create rights where the member of the armed forces had none before termination of the relationship (ie before discharge). (§§131-133)
- The predecessor of s.108 EqA was added to the DDA when the policy of the DDA was that it did not include the armed forces (eg §134, §112).
- It was a deliberate choice that the DDA, and later the EqA, did not apply to the armed forces. In 2003 (when the predecessor of s.108 EqA was first included in the DDA), various occupations, including the police, were added to the DDA to comply with an EU directive, but not the armed forces – whereas 2003 regulations on sexual orientation and religion of belief did include the armed forces. It was safe to infer that in 2003 a considered decision was taken – after the Human Rights Act 1998 had come into force – that protection from disability discrimination would not apply to the armed forces, including after termination (§§108-114, §134). Further, it was apparent that the intention of the EqA in 2010 – after a ‘wholesale review’ of discrimination law – was to continue the existing position on the armed forces (§§115-119).
The EAT did not decide whether EqA Sch 9 para 4(3) was in breach of Article 14 (read with Article 8) of the European Convention on Human Rights. However, §95 of the EAT decision makes some comments on whether a post-termination claim fell within the ambit of Article 8.
Court of Appeal: refusal of permission to appeal
Singh LJ in the Court of Appeal refused permission to appeal.
S.3 HRA 1998
Firstly, Singh LJ decided that the claimants could not appeal to the Court of Appeal the EAT’s decision that even if EqA Sch 9 para 4(3) were in breach of the Convention, s.3 HRA would not require it to be re-interpreted.
Singh LJ said the EAT’s reasoning on s.3 HRA was ‘clear and compelling’. The EAT was undoubtedly correct to conclude that it is not possible to read EqA Sch 9 para 4(3) in the way argued by either claimant. To do so, ‘however strong and unusual the interpretative obligation in section 3 of the HRA is, would be tantamount to judicial legislation, not interpretation’. It would go against the grain of the EqA, and contradict a fundamental feature of the EqA, namely that disability discrimination provisions do not apply to service in the armed forces. (§37)
As the EAT observed, said Singh LJ, this had always been the policy decision which Parliament has adopted since the first disability discrimination legislation was enacted in 1995. ‘To take a different view would raise wide-ranging policy questions which are for Parliament and not for the courts, for example, to what extent and in what circumstances the disability discrimination provisions should apply to service in the armed forces. It is not a simple binary question.’ (§38)
Accordingly, he decided that the claimants’ appeal against this aspect of the EAT decison was not reasonably arguable, and had no real prospect of success. (§38)
Whether Sch 9 para 4(3) in breach of Convention
Singh LJ also refused permission to appeal to the Court of Appeal on whether EqA Sch 9 para 4(3) breached the European Convention on Human Rights. Briefly, the parties had agreed that the ET need not consider this issue if it found that para 4(3) could not be re-interpreted in any event. For this and other reasons, it would not be appropriate to remit the issue to the ET, nor for the Court of Appeal now to consider whether to make a declaration of incompatibility, something the ET and EAT would not have jurisdiction to do. (§39-43)
My comments (Dunn)
The issues, with links, are outlined above: The issue.
Effect of the decision
This EAT decision (plus the Court of Appeal’s refusal to entertain an appeal) means there is no disability discrimination claim under the EqA by former members of the armed forces, even for discrimination occurring after discharge.
For example, a former member of the armed forces cannot claim disability discrimination in relation to a discriminatory reference given by the army etc to a prospective employer.
It is difficult to see why the armed forces would need such an exemption (despite the quote at §140 below). As accepted by the employment tribunal (ET) in T v Ministry of Defence, the exemption is not required for combat effectiveness. Anyway, the EAT and Court of Appeal evidently considered that this is what Parliament intended, and it was for Parliament to amend the law if it wished.
With the UK no longer a member of the EU, we can expect to see more attempts to use s.3 Human Rights Act to correct apparent anomalies in the EqA. Under EU law, the Marleasing principle was similar.
Assessing consequences
The EAT said the following, especially given that the ET below it had not considered evidence about implications and compatibility with the Convention:
140. … Bearing in mind the range of different disabilities which a person may have, the greater likelihood that some members of the armed forces will suffer life altering injuries (mental and physical) in the course of their work and the distinct terms under which they are engaged, this is a case in which the court does not have the ability to assess the potential consequences, or the advantages and disadvantages, which Parliament has.
Also the Court of Appeal commented that allowing a re-interpretation of the EqA under s.3 HRA here ‘would raise wide-ranging policy questions which are for Parliament and not for the courts… It is not a simple binary question.’
T v MoD overruled
On whether it is ‘possible’ under s.3 Human Rights Act to re-interpret this aspect of the EqA, the EAT overrules the ET decision in T v Ministry of Defence. ET decisions are not binding even on other ETs, and can of course be overruled by the EAT.
The EAT ‘respectfully’ acknowledged that the decision of the ET judge in T v Ministry of Defence was careful, considered and compellingly expressed. It appeared, however, that she did not have the advantage of the research into the legislative history which the EAT had carried out.
Did EAT apply the right test?
Most importantly, Singh LJ in the Court of Appeal was clear that the EAT was right to decide that the re-interpretation of the EqA sought in this case was not possible under s.3 HRA.
On the EAT’s reasoning, it might be argued that the EAT placed too much weight on whether Parliament overlooked this issue, or could be taken to have overlooked it (§136). In that paragraph the EAT goes on to say that courts should be slow to conclude that there has been an error on the part of the legislature (citing a case on drafting errors, not on s.3 HRA). The EAT does not appear to give any authority for this being the correct approach under s.3 HRA. What the EAT says there seems to go beyond the ‘only constraints’ to re-interpretation set out in the second paragraph which it quotes from Vodafone 2: Enforcement of European Convention and HRA 1998>Technical note: Limits of interpreting UK legislation to comply with the Convention.
The ETs in both Dunn v MoD (pdf, gov.uk) at §37 and L v MoD (pdf, gov.uk) at §69 cited the statement of Lord Steyn in the House of Lords in Ghaidan v Godin-Mendoza (bailii.org) [2004] UKHL 30 at §50: ‘In practical effect there is a strong rebuttable presumption in favour of an interpretation consistent with Convention rights.’ This contrasts with the EAT’s approach stated in §136. However, even based on this strong presumption, though, both ETs held that in the present case, the EqA could not be re-interpreted in the ways proposed.
