S.121 Equality Act 2010 (EqA) requires serving members of the armed forces to bring a service complaint before starting an EqA tribunal claim. The Court of Appeal rejected an argument that for a matter in respect of which no service complaint was permitted, s.121 should be re-interpreted to allow a tribunal claim even without a service complaint, because otherwise s.121 was incompatible with human rights law. Also the Employment Appeal Tribunal considered the effect of general principles of EU law up to the end of 2023. (Note: s.121 itself should not apply to disability discrimination anyway.) My comments.
[2026] EWCA Civ 8, Court of Appeal. Full decision www.bailii.org/ew/cases/EWCA/Civ/2026/8.html. (Also Employment Appeal Tribunal decision, [2024] EAT 165, on bailii.org.)
Facts
S.121 EqA says, very broadly, that a member of the armed forces cannot claim under the EqA employment provisions unless they have made a service complaint about the matter, under the statutory service complaints procedure specific to the armed forces (Armed Forces Act 2006 and regulations under it), and the complaint has not been withdrawn.
Substantive complaint
The claimant was a Squadron Leader in the RAF. She made a service complaint for sex discrimination, saying she had been bullied and discriminated against in relation to her career, and had not been supported. Her service complaint was dismissed over two years later, without an oral hearing. She appealed under the service complaint procedure, but her appeal was also dismissed, apart from accepting that the delay was maladministration. (§§7-8)
She made an employment tribunal (ET) claim in respect of the substantive matters she had raised in the service complaint, for sex discrimination and harassment under the EqA. This ET claim was not the subject of the present appeal to the Court of Appeal. It was scheduled to be heard by the ET later in 2026. (§16 of EAT decision, §105 of CofA decision)
Complaint about procedure
When her service complaint was rejected, the claimant also complained to the Service Complaints Ombudsman for the Armed Forces (SCOAF), who found that there had been maladministration and upheld her SCOAF complaint (this was distinct from her service complaint). The Ombudsman recommended a “moderate consolatory payment”. (§9)
She was dissatisfied with the SCOAF decision, and made a second ET claim – which was the subject of this appeal – alleging sex discrimination and victimisation under the EqA in respect of the service complaints procedure. For example, she argued that it was indirect discrimination that an oral hearing had not been held. (§10)
Broadly speaking, it was not possible to bring a service complaint in respect of the service complaints procedure, due to exclusions in regulation 3(2) of the Armed Forces (Service Complaints Miscellaneous Provisions) Regulations 2015 (the “2015 regulations”). (§31-32 of EAT decision).
So the regulations blocked her from making a service complaint in respect of the complaints in her second ET claim. S.121 EqA said she could not bring an ET claim in respect of something about which she had not first brought a service complaint. Was her second ET claim therefore barred by s.121?
Held by the Court of Appeal: Her second ET claim was barred by s.121, even though no service complaint was allowed in respect of it. (Her first, substantive, ET claim was still proceeding towards an ET hearing, however. She had made a service complaint in respect of that.)
Employment tribunal (ET) decision
The ET said that on a literal reading, s.121 EqA barred her from bringing the second ET claim, about procedure.
However, the ET held that s.121 EqA was in breach of Article 14 (non-discrimination) of the European Convention on Human Rights (ECHR). It was not disputed that this case fell within the ambit of Article 6 (right to a fair trial). Serving members of the armed forces – conceded to be an “other status” within Article 14 – were treated differently from civilian employees. The ET held that despite the additional statutory remedies available to service personnel, they were in an analogous position with civilian employees. It held further that the difference in how service personnel were treated compared with civilivan employees – ie certain claims to the ET being barred – was not objectively justified. The ET therefore considered there was a breach of the ECHR. (§55-58 in CofA decision)
The ET went on to hold that, under s.3 Human Rights Act, a provision should be read into the EqA so that s.121(1) did not apply to the extent the matter was excluded under reg 3(2) of the 2015 regulations. The ET considered that this re-interpretation did not fly against the grain of s.121. The claimant’s second ET claim, about procedural aspects of her service complaint, should therefore be allowed to proceed. (§46-54 of CofA decision)
As well as human rights law, the ET considered European Union (EU) law (§53 of EAT decision). Had it been necessary, the ET would have concluded that the exclusion of complaints of sex discrimination in the service complaints procedure was incompatible with the EU general principles of “effectiveness” and “equivalence”. However, since the start of 2021, Sch 1 para 3 of the EU (Withdrawal) Act 2018 prevented a court from disapplying any enactment on the grounds of incompatibility with a general principle of EU law. Therefore the ET could not disapply s.121 EqA on this ground. (But her second ET claim could still proceed, based on the human rights argument above.) [EU law aspects were not appealed to the Court of Appeal. As to the EAT decision, see below Technical note: EU law.]
Court of Appeal
CofA: No particular provision that was incompatible with ECHR
The Court of Appeal said it was very difficult, if not impossible, to isolate a particular provision of the relevant primary or subordinate legislation which was incompatible with the claimant’s ECHR rights. The relevant effect on her was a combination of different provisions. (§98).
S.121 EqA was not, in itself, incompatible with her ECHR rights. On its own, s.121 simply imposed two conditions on the jurisdiction of the ET – the complainant must have made a service complaint, and must not have withdrawn it. (§95)
The EAT had described as a “classic catch-22” the situation of the claimant being barred by regulations from bringing a service complaint, and not being able to claim to the ET under the EqA because she had not brought a service complaint (§67 in CofA, §74 in EAT). However, the Court of Appeal said this was a consequence, not of the words of s.121 EqA, but of what the EAT described as “the interlocking statutory scheme”. S.3 HRA did not therefore require (or permit) the ET to do anything with the text of s.121, other than to give it its ordinary meaning (§95 in CofA).
Even if (and this point had not been argued at any stage), the 2015 regulations on service complaints were incompatible with the claimant’s ECHR rights, this was not a case where it was possible simply to ignore an obviously incompatible provision of subordinate legislation [this may refer to s.6 HRA, see §37], not least because there was no such provision which, at face value, was incompatible (§95).
It was reasonable to assume that in enacting and (though 2015 “armed forces” legislation) amending s.121 EqA, Parliament knew of the 2015 regulations, in which the Secretary of State exercised a conscious choice about the precise extent to which a person would, or would not, be barred from making a service complaint about discrimination, bullying or harassment. A court was simply not qualified to tinker with this scheme in any way. That was a question for the Secretary of State, not for the court. (§97).
This view was supported by the legislative scheme, and its history. The relationship between the Armed Forces Act 2006 and the EqA was not accidental. It was a carefully interlocking scheme, designed by Parliament to reflect Parliament’s choices about the extent to which serving members of the armed forces should be entitled to bring discrimination claims in the ET, against the background of their access to a full process for the raising and decision of service complaints, and of their access to the Ombudsman (SCOAF). (§12).
CofA: No breach of ECHR anyway
There was no breach of Article 14 ECHR anyway, the Court of Appeal held. Firstly, the claimant was not in a position which was analogous to that of a civilian employee or former member of the armed forces (s.121 does not apply to discrimination occurring after discharge). The key reason was that the claimant was, and they were not, subject to service law, with all that that entailed. The court said: “She is, and they are not, part of a disciplined force, in which, not least because of the possibility of armed service, obedience, cohesion and the protection of morale are essential. She has in relation to her current and past service, and they do not, access to a statutory service complaints process and to the Ombudsman (a former member of the armed forces only has such access in relation to matters which arose during her service).” (§99)
Secondly, even if service personnel were analogous with civilian employees (or ex-service personnel), the difference in treatment was justified. Prolonged disputes and satellite litigation about the complaints process were not conducive to cohesion or to good morale. Being a serving member of the armed forces was not a suspect category. Therefore a difference in treatment could be justified if it was not manifestly without reasonable foundation. The precise details of the relationship between the system for service complaints and the jurisdiction of the ET were questions for policy and legislative judgments, which this court was not well equipped to make. (§100)
My comments
Comment: Relevance
S.121 EqA should not itself be relevant for disability discrimination, because the armed forces are excluded from disability discrimination claims under the EqA employment provisions: Armed forces and disability discrimination. However the case is of some interest in discussing and applying the tests for how far human rights and perhaps (to the end of 2023) EU law may – or here may not – override the wording of the EqA.
The Court of Appeal made the point that the ET would still hear the claimant’s substantive ET claim for sex discrimination contrary to the EqA (§105). She had made a service complaint in respect of that, so s.121 allowed the ET claim. Only her second ET claim, in respect of how the service complaint was handled (eg lack of an oral hearing, §10), was blocked by this Court of Appeal decision.
Comment: Human rights
I struggle with the apparent view of the Court of Appeal that because any breach of the ECHR would be the combined effect of several provisions – so one could not identify any particular provision breaching the ECHR – there could be no re-interpretation of legislation under s.3 Human Rights Act. This seems an unnecessarily restrictive view of s.3 HRA, and I can’t see that the Court of Appeal gives any authority for it.
In any event, the Court of Appeal also held that the combined effect of the various provisions was not in breach of the ECHR.
Sex (like disability) is a suspect ground, which makes it harder to “justify” discrimination under Article 14 ECHR. Note that even though the underlying complaints here were of sex discrimination, the alleged Article 14 discrimination itself was not based on sex – but on being a serving member of the armed forces (not a “suspect” ground). So the government had a wider discretion – a wider “margin of appreciation” – as to whether the difference in treatment was justified.
Even if British legislation such as the EqA is in breach of the ECHR (which here it was held not to be), it cannot be re-interpreted to conform with the ECHR if to do so would go against the grain of the British legislation, or require the courts to make decisions for which they are not equipped: see Enforcement of European Convention and HRA 1998>Interpreting UK legislation to comply with the Convention. The Court of Appeal may well have found the proposed re-interpretation here did not pass this test, given what it said about Parliament being taken to know – when it amended s.121 EqA – that some service complaints were excluded by the 2015 regulations, and these being matters of policy in which the court was not equipped to interfere.
The ECHR – see Human Rights Act 1998/ European Convention – continues to apply to the UK after Brexit.
Comment: EU law
EU law was considered by the EAT, but not by the Court of Appeal. See on this comments below.
Links
- Court of Appeal delivers judgment in Rubery v Ministry of Defence [2026] EWCA Civ 8 on alleged ECHR violation in servicepersons’ access to tribunals (oldsquare.co.uk), 21 Jan 2026
- Ben Cooper KC and James Chegwidden successful in EAT appeal on military service complaints regime: Ministry of Defence v Rubery [2024] EAT 165 (oldsquare.co.uk), 14 Oct 2024.
Technical note: EU law
The EU law aspect of the ET’s decision was not appealed to the Court of Appeal. So at appeal level, it was considered only by the Employment Appeal Tribunal (EAT).
EU law in EAT decision
The EAT agreed with the ET (above) on EU law. The EAT upheld the ET decision that (1) s.121 EqA was incompatible with the EU general principles of equivalence and effectiveness but (2) Sch 1 para 3(2) EU (Withdrawal) Act 2018 meant the court could not disapply s.121 EqA because of that incompatibility. (§132-143 of EAT decision)
The EAT said that the explanatory notes [to the 2018 Act?] and Bennion on Interpretation supported the agreed position between the parties that the Marleasing principle continued to apply to the interpretation of pre-2021 UK legislation in the period under consideration, ie into 2021, and was an aspect of the principle of EU supremacy. (§139 of EAT decision) [On the Marleasing principle: Archive: Effect of EU law when interpreting Equality Act, 2021 to 2023>Marleasing principle: interpreting the Equality Act to conform with the directive]
It seemed, however that the intention of para 3(2) of Sch 1 was, in part, to identify the scope or limitations to that principle. The claimant argued that the proposed reading down of s.121 EqA was an interpretation, and did not “disapply” or “quash” an enactment contrary to Sch 1 para 3(2). However, the proposed read down sought to disapply reg 3(2) of the 2015 regulations. For the reasons that the EAT had found reading down was impossible under s.3 Human Rights Act, the proposed alterations went beyond interpretation and amounted to disapplication. Inserting words that a particular section is “not applicable to the extent that….” amounted to a disapplication. (§§138 & 140 of EAT decision)
The parties had accepted that the test for whether UK legislation could be read down under s.3 Human Rights Act to comply with the ECHR was for the same as the test for whether it could be read down under the Marleasing principle to comply with EU law (§87). So even apart from Sch 1 para 3(2), it would not have been possible to re-interpret the legislation, as to do so would go against the grain of the statutory wording (§142).
My comment: EU law and Marleasing principle (before 2024)
It was not disputed by the parties that the Marleasing principle (links below) continued to apply after Brexit, presumably up to the end of 2023. Basically the Marleasing principle said that UK legislation had to be interpreted to conform with EU law, even if that was inconsistent with the UK wording, provided the re-interpretation did not go against the grain of the UK legislation.
It is not clear how far (if at all) this EAT decision indicates that up to the end of 2023, para 3(2) of Sch 1 EU (Withdrawal) Act 2018 further restricted the Marleasing principle, ie beyond that proviso of not going against the grain, in cases where the relevant EU law was a “general principle” of EU law. The EAT here had held that the re-interpretation did go against the grain of the legislation, and referred back to its reasoning on that in holding that Sch 1 para 3(2) applied. This was not a case where apart from para 3(2), the Marleasing principle would have allowed the re-interpretation. Also the EAT (§§91, 102, 141) seemed happy to distinguish this case from the EAT decision in Duncan v MOD, where there had not been an intention to deprive service personnel of a claim in the relevant situation. In any event, this issue of the scope of Sch 1 para 3 may well be addressed by the Court of Appeal (if not the Supreme Court) at some stage.
Para 3(2) of Sch 1 said that after the end of 2020, up to the end of 2023, no court could disapply or quash any enactment based on a failure to comply with any of the general principles of EU law. Para 3(2) of Sch 1 should only apply to cases arising before the end of 2023, from which time general principles of EU law no longer apply in Great Britain (links below).
Para 3(2) of Sch 1 was relevant in this case only because it was the EU “general principles” of equivalence and effectiveness that were at issue. This was not a case of breach of particular provisions of the Framework Employment Directive for example.
Links on the Marleasing principle, and general principles of EU law
- On the principle itself: EU Framework Employment Directive>Marleasing principle: interpreting Equality Act to comply with Directive
- On its continuing after Brexit until the end of 2023: Archive: Effect of EU law when interpreting Equality Act, 2021 to 2023>Marleasing principle: interpreting the Equality Act to conform with the directive.
- On the Marleasing principle probably not applying to discrimination which occurred after the end of 2023: Brexit: Effect of EU law when interpreting Equality Act, from 2024>Marleasing principle.
As to para 3(2) of Sch 1 EU (Withdrawal) Act 2018, see Archive: Effect of EU law when interpreting Equality Act, 2021 to 2023>Exceptions for EU general principles.
From 1st January 2024 “general principles of EU law” are no longer part of UK law: Brexit: Effect of EU law when interpreting Equality Act, from 2024>Supremacy of EU law ended on 31st December, 2023.
My comment: EqA as EU-derived domestic legislation
The parties agreed in the EAT that the Equality Act 2010 is EU-derived domestic legislation within the meaning of s1B(7)(b) EU (Withdrawal) Act 2018, and therefore continued to have effect in domestic law as it did immediately before 2021, subject to particular exceptions. (§135)
As regards the EqA employment provisions, this is in line with my analysis at Brexit: Effect of EU law when interpreting Equality Act, from 2024>Technical note: Why the Equality Act employment provisions are “assimilated law”.
