Mrs A Rubery v Ministry of Defence: 3312963/2021
| Jurisdiction | England & Wales |
| Judgment Date | 12 November 2022 |
| Date | 12 November 2022 |
| Published date | 22 November 2022 |
| Court | Employment Tribunal |
| Subject Matter | Sex Discrimination |
| Citation | 3312963/2021 |
Case Number: 3312963/2021
1
EMPLOYMENT TRIBUNALS
claimant respondent
Mrs Anne Rubery -v- Ministry of Defence
Heard at: Watford Employment Tribunal (via CVP) On: 20 July 2022
Before: Employment Judge Hanning
Appearances
For the claimant: Mr C Milsom (Counsel)
For the respondent: Mr Chegwiddin (Counsel)
RESERVED JUDGMENT
1. The respondent’s application to strike out the claimant’s claims on the grounds they
fall outside the Tribunal’s jurisdiction is dismissed.
REASONS
2. The issue at hand in this case is whether the Tribunal has jurisdiction or not to
consider the claimant’s claim of victimisation and indirect sex discrimination.
3. The claimant, a serving member of the armed forces, presented an ET1 on 9 July
2021. The claim relates to the conduct of a service complaint she had made (itself
alleging discrimination).
4. The respondent presented its defence on 8 October 2021 and advanced a
preliminary jurisdictional issue, namely that the ET is precluded from considering
the majority of the complaints by reason of s121 Equality Act 2010 (Armed Forces
Cases) (EqA 2010).
5. Pursuant to ss120-121 EqA 2010, in order for the ET to have jurisdiction over a
complaint of discrimination pursued by a serving member of the armed forces, the
claimant must have made a service complaint and not withdrawn the same.
Case Number: 3312963/2021
2
6. A service complaint is as defined by Armed Forces Act 2006 (AFA 2006) and
regulations enacted thereunder including the Armed Forces (Service Complaints
Miscellaneous Provisions) Regulations 2015 (the 2015 Regs).
7. Regulation 3 of the 2015 Regs identifies “excluded complaints” about which a
person “may not make a service complaint.” These include complaints about (a) a
decision on the service complaint, a determination of an appeal from a service
complaint or alleged maladministration in connection with the handling of the
service complaint.
8. Since maladministration and discrimination in the administration of a service
complaint constitutes an excluded complaint, it is impossible for a claimant to satisfy
the requirement under s121 EqA 2010. It follows that where the alleged
discrimination relates to the administration or outcome of a service complaint by a
serving member of the armed forces the ET can never have jurisdiction.
9. On 7 September 2021 the respondent applied for a preliminary hearing to
determine the question of jurisdiction. The matter was directed for determination by
EJ Lewis on 12 November 2021.
10. The application was initially to be heard on 27 May 2022 but, because it was said
the claimant had raised new issues for which the respondent had been unable to
prepare, the hearing was adjourned to 20 July 2022.
11. On 20 July 2022 I heard lengthy submissions from Mr Milson for the claimant and
Mr Chegwiddin for the respondent supplemented by written skeleton arguments. It
behoves me to record how immeasurably helpful both their contributions were and
to stress that my failure below to record the full breadth of their submissions intends
no disrespect. Even though I do not record all both submitted, I have considered it
all in reaching my judgment.
12. I reserved judgment on 20 July 2022 and apologise unreservedly to the parties that
illness has seriously delayed the preparation of this judgment.
Factual Background
13. The claimant has served in the RAF for over 30 years. She is currently engaged as
a Personnel Support Officer Sqn Leader. She maintains that her experience in the
RAF has been blighted by sex discrimination particularly following treatment for
IVF. She alleges that she has been subject to unlawful sex discrimination, whilst
undergoing IVF treatment, by three senior RAF officers and that she had been
subject to discriminatory comments by a fourth senior officer during the subsequent
investigation of her service complaint.
14. On 27 September 2018 the claimant submitted what proved to be her first service
complaint. That complaint alleged, inter alia, that there was bullying and
discrimination as regards career progression and a lack of support compounded by
To continue reading
Request your trial