An employment tribunal has held that under the Human Rights Act, the Equality Act must be re-interpreted to permit a claim where disability discrimination occurs after discharge from the armed forces. On the face of it, the Equality Act employment provisions exclude disability discrimination claims by members of the armed forces, including former members. However the tribunal held that as regards former members, this exclusion is discrimination contrary to Article 14 of the European Convention on Human Rights. It was unjustified because the purpose of the exclusion was to protect combat effectiveness, but that purpose no longer applies once someone had been discharged.
2021, Employment Tribunal. Full tribunal decision (gov.uk). Note this decision this is not binding on other tribunals.
Facts
The claimant had been an Able Seaman in the Royal Navy, and was medically discharged. She argued that her PTSD, anxiety and depression was a disability within the EqA.
She claimed sex discrimination, disability discrimination and victimisation as regards how – after her discharge – Service Complaints she made about alleged sexual harassment were handled. (The Service Complaints process in the armed forces is statutory, governed by legal regulations as well as policies.)
Her disability discrimination claim was that the MoD failed to make reasonable adjustments, specifically that the MoD’s practice of not progressing or resolving complaints within the expected timescale substantially disadvantaged her because of her disability. The Service Complaints Ombudsman had ruled there were excessive delays in handling the Service Complaints.
The MoD argued among other things that the tribunal had no jurisdiction to hear the disability discrimination claim, because under EqA Sch 9 para 4(3) the armed forces are excluded from the EqA employment provisions on disability: Exclusions: armed forces, illegal contracts>Exclusion of the armed forces.
Her claim was under s.108 EqA because it was for discrimination in the period after she had been discharged: Former employees/ workers. However on the face of it, this was still subject to the exclusion in Sch 9 para 4(3) because under s.108(1)(b) former workers are only covered so far as the employer’s conduct would have been a breach of the EqA had it been done before the end of the employment etc [71].
Held by employment tribunal: As regards discrimination after discharge, the exclusion of disabled ex-servicemen and women from EqA protection was in breach of the European Convention on Human Rights. Since they had left the armed services, their exclusion was not necessary to protect combat effectiveness. The EqA must be re-interpreted to permit disability discrimination claims in respect of discrimination after discharge.
Tribunal decision
On the face of the EqA, the armed forces were free to discriminate against disabled ex-servicemen and women. This was surprising since the purpose of the relevant derogation from the EU Framework Employment Directive was to protect the combat effectiveness of the armed forces. However, there could be no possible link between their combat effectiveness and the way that they were permitted to treat disabled ex-servicemen and women. Even so, that was the law unless it infringed the rights of the claimant under the European Convention on Human Rights (ECHR). [72]
So did the exclusion breach the claimant’s rights under Article 14 ECHR? (Human Rights Act 1998/ European Convention>Article 14: Non-discrimination)
Within ambit of Article 8 (private life)
Article 14 only applies if the case falls within the ambit of another Convention right (Scope of European Convention rights>Article 14 and the ‘ambit’ of other Convention rights).
The claimant submitted that she fell within the ambit of Article 6 (fair trial) or Article 8 (private and family life). The tribunal held she did fall within the ambit of Article 8:
77. The Claimant’s case plainly comes within the ambit of Article 8. Her claim is that she was discriminated against, in relation to her disability, and that this discrimination caused injury to her feelings and distress. As such, her psychological integrity has been (she claims) affected and thus her Article 8 rights engaged on the basis of the authorities to which the Claimant refers (Costello-Roberts v the United Kingdom (1993) 19 EHRR 112, X and Y v the Netherlands (1985) 8 EHRR 235 and Glor v Switzerland 13444/04 [2009] ECHR 2191). A further helpful summary of the case law on Article 8 in the employment context is to be found in the judgment of the Strasbourg Court in Denisov v Ukraine (Application No. 76639/11), judgment of 25 September 2018 at [95]–[107]. In that case, the European Court of Human Rights (ECrtHR) noted that a person’s private life may include activities of a professional or business nature and Article 8 will be engaged where factors relating to private life have been brought into the work context (eg personal relationships, sexuality, disability etc), or where the consequences of a decision in the work context (eg a disciplinary decision or a dismissal) may have negative effects on an individual’s private life, including their ‘inner circle’ of friends and family, their opportunities to establish and develop relationships with others in future (both in work and out of work) and their reputation. I accept that decisions taken by the [MoD] in the operation of the service redress procedures are, if discriminatory as alleged, capable of affecting the Claimant’s psychological integrity. The Claimant’s claim therefore falls within the ambit of Article 8.
The tribunal left open whether the case also fell within the ambit of Article 6, the right to a fair trial. For example Lord Sumption had noted in Benkharbouche v Sudan, 2017, that Article 6 is not concerned with the substantive content of the laws of a Member State. The effect of EqA Sch 9 para 4(3) as currently drafted was that Parliament has not granted to disabled servicemen and women the civil right to claim disability discrimination against their employer. As such, it was arguable that Article 6 was not engaged in this case. [78]
Discrimination because of “other status”
The alleged discrimination was on grounds of ‘other status’ within Article 14.
The discrimination was on grounds of being a disabled person, which – although not mentioned in Article 14 – is a recognised status in the case law on Article 14 (Glor v Switzerland). Disabled ex-servicemen and women cannot bring discrimination claims on the basis of their disability, whereas as other ex-servicemen and women can bring discrimination claims on the basis of other protected characteristics. [79]
Alternatively, the EqA discriminated between ex-servicemen and women and ex-employees of civilian employers on the basis of their status as ex-services rather than ex-civilian [79].
Also in both cases the relevant groups were in analogous situations [80].
Justification
The tribunal had to consider whether the measure in question pursued a legitimate aim, and there was a reasonable relationship of proportionality between the means employed and
the aim sought to be realised.
In this case the MoD had not identified any legitimate aim, and it was not possible to think what the aim might be. The purpose of the exemption must be to safeguard the combat effectiveness of the armed forces, and as such could have no relevance once the individual had been discharged from the armed forces. [81]
Equality Act should be re-interpreted
The tribunal held it was allowed to re-interpret the EqA under s.3 Human Rights Act to allow claims by disabled ex-servicemen and women, as doing so did not go impermissibly against the grain of the legislation [73-75]. Indeed the overwhelming impression was that no consideration had been given to this question when the EqA was passed [75]. The tribunal also suggested the minor amendment to drafting that would be required [82].
My comments
Comments: Not a binding precedent
This is only an employment tribunal decision, and so 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. Claims by former members of the armed forces for post-discharge discrimination will be subject to the normal rules in s.108 EqA: Former employees/ workers. An example is a discriminatory job reference.
Comments: Bill of Rights Bill
The Bill of Rights Bill, if passed in the form currently proposed by the government, is likely to alter the position.
For one thing, after the Bill came into effect a tribunal would be unable to re-interpret the EqA under s.3 Human Rights Act, as it did here. A higher court could make a declaration of incompatibility with the Convention, but the courts would have to continue to apply the EqA as written (unless they feel they can re-interpret it without s.3). They would have to continue to exclude ex-servicemen and women unless and until the EqA is amended by the government or Parliament.
Also after the Bill came into effect, for example would the court be unable even to find there is a breach of the Convention in the present circumstances? The government might argue that to find there was a duty to make reasonable adjustments by conducting a Service Complaint promptly would impose a positive obligation on a public authority contrary to clause 5 of the Bill. However this argument should not apply where the EqA is not imposing a positive obligation.
Comments: Using Article 8 in employment cases
In the past a problem with arguing that Article 14 ECHR applies in employment cases has been that the claimant could not show the case fell within the ambit of another Convention right. If it does not, Article 14 does not apply.
The present decision – though not binding on other tribunals – is interesting in that the tribunal quite easily found the case fell within the ambit of Article 8. Particular features it mentioned as bringing the case within Article 8 were that she was discriminated against in relation to her disability, and this discrimination caused injury to her feelings and distress so her psychological integrity was affected.
On this approach, perhaps any disability discrimination claim would fall within Article 8?
Links on my website
- Exclusions: armed forces, illegal contracts>Exclusion of the armed forces.
- Scope of European Convention rights>What about disability discrimination by employers? Article 8 with Article 14?
External link
- The Ministry of Defence can no longer discriminate against veterans on the grounds of their disability – it breaches their human rights (centreformilitaryjustice.org.uk), December 2021 – suggests discrimination after discharge could relate to the following for example: reviews of pension arrangements; application to the Armed Forces Compensation Scheme due to injury sustained during service; or a Service Complaint as in this case remaining outstanding because of the well-known serious delays inherent in that system.
