The British Medical Association Dr Glynn Evans v Secretary of State for Defence
| Jurisdiction | England & Wales |
| Judge | Mr Justice Bourne |
| Judgment Date | 25 May 2022 |
| Neutral Citation | [2022] EWHC 1262 (Admin) |
| Docket Number | Case No: CO/1292/2021 |
| Court | Queen's Bench Division (Administrative Court) |
The Queen On the application of
and
[2022] EWHC 1262 (Admin)
THE HON. Mr Justice Bourne
Case No: CO/1292/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Birmingham Civil Justice Centre
Priory Courts, 33 Bull Street, Birmingham B4 6DS
Kate Gallafent QC and Celia Rooney (instructed by Wace Morgan) for the Claimants
James Strachan QC and Simon P G Murray (instructed by Government Legal Department) for the Defendant
Hearing date: 22 nd – 23 rd March 2022
Approved Judgment
Introduction and factual background
The claimants challenge a decision by the defendant, communicated to the claimants on 12 January 2021, to direct that the Government should not commence or fully implement section 192 of the Employment Rights Act 1996 (“ERA”) at present. That section, if implemented in full, would enable service personnel to bring Employment Tribunal claims for causes of action including unfair dismissal.
There is an application by the first claimant for permission to withdraw his claim. That is not opposed by any party and I will grant permission for his withdrawal, subject only to any costs issues which can be decided later. That leaves the British Medical Association (“BMA”) as the surviving claimant.
The ERA today contains many, though not all, of the fundamental statutory employment law rights of employees and workers, including the right not to be unfairly dismissed.
That right was first introduced in the Industrial Relations Act 1971 and was re-enacted in Part V of the Employment Protection (Consolidation) Act 1978 (“1978 Act”). The right was not extended to members of the armed forces. So the provisions of section 138 of the 1978 Act, as originally enacted, included:
“(1) Subject to the following provisions of this section, Parts I …, II, III, V, VIII and this Part and section 53 shall have effect in relation to Crown employment and to persons in Crown employment as they have effect in relation to other employment and to other employees.
(2) In this section, subject to subsections (3) to (5), “Crown employment” means employment under or for the purposes of a government department or any officer or body exercising on behalf of the Crown functions conferred by any enactment.
(3) This section does not apply to service as a member of the naval, military or air forces of the Crown …, but does apply to employment by any association established for the purposes of Part VI of the Reserve Forces Act 1980.”
(emphasis added)
In 1993, provision was made for the relevant parts of ERA to be applied to service personnel at some point in the future. Section 31 of the Trade Union Reform and Employment Rights Act 1993 (“the 1993 Act”):
i. provided that section 138(3) of the 1978 Act would be amended so as to read:
“(3) This section applies to service as a member of the naval, military or air forces of the Crown but only in accordance with section 138A and it applies also to employment by any association established for the purposes of Part VI of the Reserve Forces Act 1980”; and
ii. added a new section 138A of the 1978 Act, which would permit the relevant provisions to be applied to the armed forces by Order in Council, subject to such exceptions and modifications as might be specified in the Order, including “provision precluding the making of a complaint or reference to any industrial tribunal unless the person aggrieved has availed himself of the service procedures for the redress of complaints applicable to him”.
However, section 31 of the 1993 Act was, itself, never brought into force and therefore the contemplated amendments of the 1978 Act did not take place.
On 22 August 1996, most provisions of the ERA came into force. The right not to be unfairly dismissed was now found in Part X of that Act.
Section 191 of the ERA provides:
“(1) Subject to sections 192 and 193, the provisions of this Act to which this section applies [ these include the relevant provisions of Part X] have effect in relation to Crown employment and persons in Crown employment as they have effect in relation to other employment and other employees or workers.”
This claim is concerned with the “principal” version of section 192 which, if and when brought into force, would replicate the approach taken in the uncommenced section 138A of the 1978 Act by providing that the relevant provisions could be applied to members of the armed forces by an Order in Council which could be subject to modifications including provision precluding the making of a tribunal claim unless the claimant had exhausted internal redress mechanisms. Although the principal version of section 192 has not been brought into force, it has been amended from time to time but the amendments are not material to this claim. The principal version, so far as material, now reads:
“(1) Section 191—
(a) applies to service as a member of the naval, military or air forces of the Crown but subject to the following provisions of this section, and
(b) applies to employment by an association established for the purposes of Part XI of the Reserve Forces Act 1996.
(2) The provisions of this Act which have effect by virtue of section 191 in relation to service as a member of the naval, military or air forces of the Crown are—
…
(e) Part X, apart from sections 98B(2) and (3), 100 to 103, 104C, 108(5) and 134,
…
(3) Her Majesty may by Order in Council—
(a) amend subsection (2) by making additions to, or omissions from, the provisions for the time being specified in that subsection, and
(b) make any provision for the time being so specified apply to service as a member of the naval, military or air forces of the Crown subject to such exceptions and modifications as may be specified in the Order in Council,
but no provision contained in Part II may be added to the provisions for the time being specified in subsection (2).
(4) Modifications made by an Order in Council under subsection (3) may include provision precluding the making of a complaint or reference to any employment tribunal unless—
(a) the person aggrieved has made a service complaint; and
(b) the Defence Council have made a determination with respect to the service complaint.
(5) Where modifications made by an Order in Council under subsection (3) include provision such as is mentioned in subsection (4), the Order in Council shall also include provision—
(a) enabling a complaint or reference to be made to an employment tribunal in such circumstances as may be specified in the Order, notwithstanding that provision such as is mentioned in subsection (4) would otherwise preclude the making of the complaint or reference; and
(b) where a complaint or reference is made to an employment tribunal by virtue of provision such as is mentioned in paragraph (a), enabling the service complaint procedures to continue after the complaint or reference is made.
(6A) In subsections (4) and (5)—
‘service complaint’ means a complaint under section 334 of the Armed Forces Act 2006;
‘the service complaint procedures’ means the procedures prescribed by regulations under that section.
(7) No provision shall be made by virtue of subsection (4) which has the effect of substituting a period longer than six months for any period specified as the normal period for a complaint or reference.
(8) In subsection (7) ‘the normal period for a complaint or reference’, in relation to any matter within the jurisdiction of an employment tribunal, means the period specified in the relevant enactment as the period within which the complaint or reference must be made (disregarding any provision permitting an extension of that period at the discretion of the tribunal).”
I describe this as the “principal” version of section 192, because “transitory provisions” of the ERA brought an alternative version of that section into force. Paragraph 16 of Schedule 2 provides:
“(1) If section 31 of the Trade Union Reform and Employment Rights Act 1993 has not come into force before the commencement of this Act, this Act shall have effect until the relevant commencement date as if for section 192 there were substituted—
‘Section 191 –
(a) does not apply to service as a member of the naval, military or air forces of the Crown, but
(b) does apply to employment by an association established for the purposes of Part XI of the Reserve Forces Act 1996.’
(2) The reference in sub-paragraph (1) to the relevant commencement date is a reference-—
(a) if an order has been made before the commencement of this Act appointing a day after that commencement as the day on which section 31 of the Trade Union Reform and Employment Rights Act 1993 is to come into force, to the day so appointed, and
(b) otherwise, to such day as the Secretary of State may by order appoint.”
The overall effect is that the “transitory” version of section 192 applies initially, until it is replaced by the “principal” version on “such day as the Secretary of State may by order appoint”. Unless and until the principal version comes into force, service personnel cannot make the relevant claims in the Employment Tribunal.
It should however be noted that they can make Employment Tribunal claims of other kinds which arise under other statutes, such as discrimination claims or claims for equal pay under the Equality Act 2010.
There being no recourse for service personnel to the excluded employment law rights, there have for many years been internal arrangements for service complaints. In the modern era, detailed provisions were made by the Armed Forces Act 2006 and associated secondary legislation. From 1 January 2008, the 2006 Act introduced a new service complaints...
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