Patti-Merne Edwards v Ministry of Defence
[2024] EAT 18
Ministry of Defence v Anne Rubery
14 October 2024
[2024] EAT 165
Employment Appeal Tribunal
A soldier claimed discrimination within the army's internal complaints system. A lower court let her sue, but a higher court ruled the army's system was fair and she couldn't sue about the system itself.
Key Facts
- •Mrs Anne Rubery, a serving RAF Squadron Leader, made a service complaint alleging sex discrimination and harassment.
- •Her complaint was largely dismissed, leading to ET proceedings alleging sex discrimination and victimisation within the service complaints procedure itself.
- •Section 121 of the Equality Act 2010 prevents ET claims about the service complaints process unless a service complaint has been made about that specific process (which is itself excluded under the Armed Forces Act 2006 and related regulations).
- •The ET found for the claimant, reading down s.121 to allow the claim, based on breaches of Article 14 ECHR read with Article 6 ECHR and potential incompatibility with retained EU law.
- •The MOD appealed the ET's decision.
Legal Principles
Employment Tribunals (ETs) are creatures of statute and have no inherent jurisdiction.
Irwell Insurance Co Ltd v Watson [2021] ICR 1034, CA at [17]
Section 3 of the Human Rights Act 1998 requires primary legislation to be interpreted compatibly with Convention rights, but only so far as possible; interpretations cannot contradict fundamental features of the legislation or involve policy decisions for Parliament.
Ghaidan v Godin-Mendoza [2004] 2 AC 557 SC at [33]
Articles 6 and 14 of the ECHR guarantee a fair hearing and protection against discrimination. Article 14 is not a freestanding right.
R(Stott) v Secretary of State for Justice [2020] AC 51 at [8]
The test for Article 14 discrimination involves assessing whether there is a difference in treatment, whether the situations are analogous, and whether the difference is objectively justified.
R(Stott) v Secretary of State for Justice [2020] AC 51 at [8]
The EU principle of equal treatment requires effective and equivalent procedures for enforcing equality rights; procedures cannot render the enforcement of rights virtually impossible or excessively difficult.
Recast Equal Treatment Directive 2006/54/EC, R (Unison) v Lord Chancellor [2017] 3 WLR 409, Totel Ltd v Revenue and Customs Commissioners [2018] 1 WLR 4053
Schedule 1, paragraph 3(2) of the European Union (Withdrawal) Act 2018 prevents disapplying or quashing domestic legislation because of incompatibility with EU law.
European Union (Withdrawal) Act 2018, Schedule 1, paragraph 3(2)
Outcomes
The EAT allowed the MOD's appeal and dismissed Mrs Rubery's claim.
The EAT held that the ET erred in finding a breach of Article 14 ECHR read with Article 6 ECHR because the MOD's exclusion of complaints about the service complaints procedure from the ET's jurisdiction was objectively justified. Furthermore, the ET lacked power to read down s.121 of the Equality Act 2010 to allow the claim, as that would go against the grain of the legislation. The cross-appeal relating to EU law also failed because the EU(W)A 2018 prevented the necessary read-down.
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