Ms Patti-Merne Ornella Edwards v Ministry of Defence (Sued as British Armed Forces)
| Jurisdiction | UK Non-devolved |
| Judge | Mrs Justice Williams |
| Court | Employment Appeal Tribunal |
| Published date | 07 March 2024 |
Judgment approved by the court for handing down Edwards v Ministry of Defence
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Neutral Citation Number: [2024] EAT 18
Case No: EA-2021-000848-AS
EMPLOYMENT APPEAL TRIBUNAL
Rolls Building
Fetter Lane, London, EC4A 1NL
Date: 5 March 2024
Before :
MRS JUSTICE HEATHER WILLIAMS DBE
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Between :
MS PATTI-MERNE EDWARDS
Appellant
- and –
MINISTRY OF DEFENCE
Respondent
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Matthew Shankland, solicitor (of Sidley Austin LLP) for the Appellant
Adam Tolley KC, Julian Allsop & Anna Williams (instructed by Government Legal Department
for the Respondent
Hearing date: 30 January 2024
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JUDGMENT
Judgment approved by the court for handing down Edwards v Ministry of Defence
© EAT 2024 Page 2 [2024] EAT 18
SUMMARY
Race and sex discrimination and victimisation
The claimant is a Lance Corporal in the British Armed Forces. Following a Preliminary Hearing, the
Employment Tribunal (“ET”) determined that it did not have jurisdiction to hear her claim for race
discrimination as she had not made a service complaint about the “matter”, as required by section 121(1) of
discrimination, harassment related to sex and victimisation, because she had not made a service complaint
about those “matters” as required by section 121(1).
The claimant’s service complaint concerned the same events as the subsequent ET claim. However, it was
accepted that her service complaint did not refer explicitly to race or sex discrimination, harassment related to
race or sex, or victimisation.
The Employment Appeal Tribunal dismissed her appeal, holding that the ET was correct to conclude that
section 121 requires a complainant who subsequently brings an EQA claim to indicate in their service
complaint that they are making allegations of discrimination or harassment based on one (or more) of the
applicable protected characteristics under the EQA or (as the case may be) that they are making a complaint
of victimisation because of an action that it can be seen is capable of amounting to a protected act. However,
whether the act complained of to the Tribunal is the “matter” raised in the earlier service complaint, should be
approached in a non-technical way, by identifying the substance of the service complaint, assessed as a whole.
Consistent with this non-technical approach, the service complaint need not use the words “discrimination”
“harassment” or “victimisation” and equally, there is no need for the service complaint to refer to the relevant
protected characteristic/s by the terminology used in the EQA or to use the phrase “protected act”. Such an
approach is consistent with a purposive construction of section 121 and rights guaranteed by Article 6 of the
The ET had correctly held that the text of the claimant’s service complaint did not include anything that could
fairly be understood to be an allegation that she had been discriminated against or harassed due to race or sex
or that she had been victimised as a result of undertaking something that could amount to a protected act.
Judgment approved by the court for handing down Edwards v Ministry of Defence
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MRS JUSTICE HEATHER WILLIAMS:
Introduction
1. This is an appeal from the judgment of Employment Judge Oliver (“the EJ”) sitting at the Bristol
Employment Tribunal (“ET”) promulgated on 23 August 2021, following a Preliminary Hearing on 29 July
2021. I will refer to the parties as they were known below. The EJ determined that: (i) the ET did not have
jurisdiction to hear the claimant’s claim for race discrimination as she had not made a service complaint about
the matter as required by section 121(1) of the Equality Act 2010 (“EQA”); and (ii) the claimant’s application
to amend her claim to add claims for sex discrimination, harassment related to sex and victimisation was
refused because she had not made a service complaint about those matters as required by section 121(1) EQA,
so that the Tribunal would not have jurisdiction to hear those claims.
2. Section 121 applied because the claimant is a Lance Corporal in the British Armed Forces, Royal
Logistics Corps. In summary, section 121 provides that the Tribunal’s jurisdiction in respect of Part 5 of the
EQA (work), does not apply to a complaint relating to an act done when the claimant was serving as a member
of the armed forces unless “the complainant has made a service complaint about the matter” and the complaint
has not been withdrawn. The claimant had filed a service complaint on 25 July 2019. However, the EJ held
that it did not cover the discrimination, harassment and victimisation claims that she sought to pursue before
the ET.
3. Following a hearing under rule 3(10) of the Employment Appeal Tribunal Rules 1993 (as amended)
on 2 September 2022, permission to proceed to a full hearing was granted by HHJ Auerbach, on the basis of
amended grounds of appeal.
4. The issues raised by this appeal concern, firstly, what is required in terms of the content of a service
complaint in order to satisfy section 121(1) and, secondly, whether the claimant’s service complaint met that
requirement in respect of the ET claims that she subsequently sought to bring. These issues arise in a context
where it is accepted that the claimant’s service complaint contained a lot of factual detail about events that
were also subsequently raised in the ET claim, but it did not expressly refer to race or sex discrimination,
harassment related to race or sex or victimisation.
The amended grounds of appeal
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