Nicola Braganza of Garden Court Chambers represents T, instructed by Emma Norton, solicitor at the Centre for Military Justice.
The Ministry of Defence can no longer discriminate against veterans on the grounds of their disability and the Equality Act 2010 as presently drafted breaches disabled veterans’ human rights, an Employment Tribunal has ruled
The claim was brought by a Royal Naval veteran, T, who served in the Royal Navy between 2014 and 2018. She suffered serious sexual harassment and bullying during her time in service and left the Navy with serious mental health conditions. In 2017, she made a formal complaint (‘Service Complaint’) that she had been subjected to serious sexual harassment by two senior Naval officers and that, when she had tried to address this, she had been ostracised and bullied. Her Service Complaint was not progressed for years.
At the time of writing, the independent Service Complaints Ombudsman for the Armed Forces has made no less than three findings that the Navy has subjected T to serious and unjustified delay in the handing of her Service Complaint, and the final resolution of her Service Complaint remains outstanding, more than four years after it was made.
T argued that the approach taken by the Navy to her Service Complaint was flawed and discriminatory. In particular, she argued that the Navy was under a legal duty to make reasonable adjustments for her as a disabled person. In light of her mental health conditions, she argued that it was required to resolve her Service Complaint within a reasonable period of time and its failure to do so exposed her to further harm. The MoD argued that there was no such duty and that T was barred from bringing her claim of disability discrimination before the Tribunal because the Armed Forces were completely exempt from the disability provisions in the Equality Act.
The Equality Act 2010, on the face of it, does provide a complete exemption to the Armed Forces so that they may discriminate against all service personnel on the grounds of their disability. This is stated to be necessary in the interests of ensuring the combat effectiveness of the Armed Forces.
T challenged the scope of this exemption, arguing that veterans were in a different position to serving service personnel. They would not be required to deploy or engage in combat, because they had left service, and so the principle of combat effectiveness could not possibly justify the exemption and the MoD should not be permitted to discriminate against them on the grounds of their disability.
In a landmark ruling, extending the rights of disabled ex-servicemen and women, the Tribunal agreed with T. It has ruled that the Equality Act as currently drafted breached T’s human rights in that it prevented her from bringing a disability discrimination claim against the MoD after she had left the Navy. The Tribunal decided that it had not been the intention of Parliament to include disabled veterans in the blanket exemption and the need to preserve combat effectiveness could not possibly apply to them. The Tribunal decided that it was possible to interpret the Equality Act so that the exemption from the disability provisions only affected serving service personnel, not veterans.
The judgment may have wider repercussions for veterans, a significant number of whom may have disabilities. After they leave service, veterans may still need to have considerable contact with the Armed Forces or MoD. For example: they may need to seek reviews of their pension arrangements; they may need to apply to the Armed Forces Compensation Scheme because they have sustained injury during service; or, as in this case, they may have a Service Complaint that, because of the well-known serious delays inherent in that system, remains outstanding and continues long after they have left. If a disabled veteran believes that, post-service, the MoD has discriminated against them on the basis of their disability, or has failed to make reasonable adjustments for them to address any substantial disadvantage they may suffer (as compared to a non-disabled person), they may now be able to bring a claim.
The Armed Forces has always had a complete exemption from liability on disability (and age) discrimination claims under the Equality Act 2010. See Schedule 9, §4(3) Equality Act. When Parliament passed this legislation, the exemption was stated to be needed in order to preserve the combat effectiveness of the Armed Forces.
S108 EqA protects someone from post-employment discrimination arising from a matter that is closely connected to their employment. But only if they would have been protected from discrimination while in employment. In that way, the MoD argued that because it was not required not to discriminate against serving service personnel on the grounds of disability, the same principle applied to its dealings with T, a veteran.
Section 3 of the Human Rights Act requires all legislation to be interpreted in a way that is compatible with the European Convention on Human Rights (ECHR) so far as it is possible to do so.
The Tribunal observed that the Equality Act on its face allows the Armed Forces to discriminate against disabled former service personnel. That engaged Article 8 ECHR (the right to private and family life, which includes psychological integrity; and activities of a professional nature where factors relating to private life have been brought into a work context); and Article 14 ECHR, the right not to be discriminated against. The Tribunal held that the Equality Act as presently drafted breached T’s rights under Articles 8 and 14 of the ECHR because it prevented her from bringing a disability discrimination claim against the MoD in respect of matters that had occurred since her discharge from the Navy.
The Judge said:
"On the face of the (Equality) Act, accordingly, the armed forces are free to discriminate against disabled ex-servicemen and women. That is a surprising position because, despite Kenneth Parker J’s decision in the Child Solders’ case as to the width of the derogation provided by the Framework Directive, the purpose of the derogation is (as Recital (19), and common sense, make clear) to protect the combat effectiveness of the armed forces. However, there can be no possible link between combat effectiveness of the armed forces and the way that the armed forces is permitted to treat disabled ex-servicemen and women. I cannot see why the same obligation not to discriminate against members of the public on grounds of disability, which applies to the armed forces as to other public authorities by virtue of s 29(6) of the EA 2010, should not also apply to ex-servicemen and women….
...I, therefore, conclude that the EA 2010 as presently drafted breaches the Claimant’s rights under Articles 8 and 14 of the ECHR because it prevents her bringing a disability discrimination claim against the Respondent in respect of matters that have occurred since her discharge and accordingly s 3 of the HRA 1998 requires it to be interpreted to avoid that result. For the reasons I have already set out, I consider that it can be so interpreted without offending any fundamental feature of the legislation. It is even possible readily to envisage the minor amendment to the drafting that would be required. In my judgment, s 108(1)(b) of the EA 2010 should be read as follows: “A person (A) must not discriminate against another (B) if- (a) the discrimination arises out of and is closely connected to a relationship which used to exist between them, and (b) conduct of a description constituting the discrimination would, if it occurred during the relationship, contravene this Act (or would do were the Act not disapplied by paragraph 4(3) of Schedule 9).” With that minor amendment, the exemption from the prohibition on disability discrimination for those serving in the armed forces remains intact, but the armed forces are not permitted to discriminate against disabled ex-servicemen and women."