T v Ministry of Defence: the MoD can no longer discriminate against veterans on the grounds of their disability
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
T v Ministry of Defence – Employment Tribunal judgment, 8 December 2021.
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-service men 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.’
The Service Complaints Ombudsman for the Armed Forces, and her predecessor the Service Complaints Commissioner, has found that for every year since their inception in 2008, the service complaints system is neither efficient, effective or fair. Delays within the system are repeatedly identified as a major problem. Women are every year disproportionately represented in the service complaints system. https://www.scoaf.org.uk/
The Defence Inquiry on Women in the Armed Forces that reported in July 2021 found 62% of female respondents described having been subjected to bullying, harassment and discrimination, which included sexual offences. The Committee noted that in 2021, 89% of service personnel that had been subjected to this kind of behaviour did not even formally complain about it. They thought that nothing would be done or it that, if they did complain, it would adversely affect their career. It seems they were right to be afraid, because of those that did complain to the Army, nine out of ten thought about leaving as a result. https://committees.parliament.uk/work/856/women-in-the-armed-forces-from-recruitment-to-civilian-life/publications/
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The late Pte Sean Benton - Army failed to act on assurances given in court
The Guardian reported the successful outcome to the Benton family’s threat of judicial review against the Army for it’s failure to act upon assurances given at the inquest into the death of Pte Sean Benton.
Sean was the first of the young soldiers to die at Deepcut barracks in Surrey. At his inquest in 2018, the Army promised the Coroner that it would ensure all trainees were informed they report to the civilian police if they were abused. On the basis of that assurance, the Coroner declined to make a ‘Prevention of Future Deaths’ report.
The Benton family wanted to be sure the Army had acted on the assurances it had given to the Coroner. So we made various enquiries, culminating in a formal letter before action, threatening to take them to the High Court. It transpired the Army had not done what it had said it would do. They have formally apologised to the family and have taken steps – very belatedly – to correct the position.
We acted for the family. Counsel was Jesse Nicholls from Matrix Chambers.
LCpl Joel Robinson - bullying, service complaints and suicide
‘Service Complaints are by definition when things are going wrong for a soldier and the raising of a Service Complaint may be thought of as a potential risk factor’. Senior Coroner for Berkshire.
The inquest into the death of LCpl Joel Robinson was heard before the Senior Coroner for Berkshire between 9-11 November 2021. The CMJ’s lawyer, Emma Norton, and counsel Adam Payter of 6KBW College Hill acted for Joel’s mother Angela Robinson.
An excerpt of a BBC interview with the family’s solicitor can be heard here:
LCpl Joel Robinson died on 25 March 2019. He was 24 years old.
He served in the Household Cavalry. At the time of his death, he was based at Combermere Barracks in Windsor, although he had recently returned from Germany where he had been based since June 2017.
Joel’s mother, Angela Robinson, describes him as a warm, loyal, sociable young man with a wide circle of friends. He was a very gifted horseman and it was his passion for horses that had drawn him to the Army aged 16.
In the summer before he died Joel made a formal complaint alleging that he was being bullied, harassed, victimised and discriminated against by his Line Manager. The inquest has heard that Joel described being isolated, humiliated, ignored, that he suffered ‘bitter, bullying behaviour’ and that his boss had threatened to ‘kick his head in’. This had been going on for many months. Joel had tried repeatedly to raise his concerns with his chain of command. He described feeling ‘so lonely and depressed’ and said that the manager had made his life ‘a living hell’. He told a friend that a less experienced soldier faced with this kind of behaviour might well have killed themselves.
Joel sent a copy of his complaint to his mother. He told his mother and his friends that he feared the impact on his career of having made the complaint. In September 2018, Joel told his mother that he was no longer going ahead with it.
The inquest heard evidence of multiple serious breaches of the Army’s policies on the handling of service complaints and bullying allegations, involving at least six senior officers.
Some months later, despite a glowing annual report and having been recommended for promotion, Joel was passed over for promotion and given what he considered to be a ‘punishment posting’.
He died from hanging in his accommodation block in the early hours of 25 March 2019. When he died, he was very heavily intoxicated and evidence was heard that his chain of command was aware that he was drinking heavily.
Both the medical witness and MoD witness at the inquest confirmed that they would have expected senior officers to have referred Joel to the welfare or medical teams for help. However that did not happen.
After he died, his mother asked the Army what had happened to her son’s complaint. The Adjutant told her that the Army had no record of Joel being bullied. Despite evidence that Joel’s complaint was shared with and between senior officers both electronically and in hard copy, no explanation has ever been provided by the Army or the Ministry of Defence for its disappearance.
The Senior Coroner concluded that senior officers were ‘wholly or mostly unaware’ of the complaints policy; and that ‘no trace’ of Joel’s complaint had been found. She expressed concern at the ‘passive’ approach of the Army to its suicide prevention work and stated her intention to issue formal ‘Prevention of Future Deaths’ reports addressing among other things, the timeline for the Army to conclude its suicide prevention programme, and the need to address a lack of awareness in the Army on how to handle Service Complaints. She said: ‘Service Complaints are by definition when things are going wrong for a soldier and the raising of a Service Complaint may be thought of as a potential risk factor’.
Joel’s mother Angela Robinson said:
‘Joel felt worthless, worn down and exhausted. His allegations of bullying had been dismissed and based on what I’ve heard at this inquest and what Joel told me himself, I believe he was discouraged from continuing with it. Bullying complaints like his are just not taken seriously enough. I remain shocked that the only reason my son’s bullying complaint came to light was because he sent a copy to me. The Army would never have produced it themselves. Joel was also drinking far too much and the culture of binge drinking in the Army is a huge problem. Young soldiers are not being offered help quickly enough and suicide rates seem to be going up and up. Joel was very badly let down. I am glad the Coroner will be writing to the head of the Army, and sincerely hope that lessons will be learned from this and I would like an opportunity sit down and talk to the MoD about Joel’s case.’
The family’s solicitor Emma Norton, from the Centre for Military Justice, said:
‘This case has shone a much-needed spotlight on the experiences of young, vulnerable soldiers trying to raise serious complaints of bullying through their own chain of command. Joel’s complaint was not acted on properly and then appears to have simply disappeared. The Army and MoD will say, as they always do, that they do not tolerate bullying. But until they introduce a measure of independence into the complaints process – as was recommended by a review more than two years ago – sad cases like this are likely to recur.’
Notes to Editors
The Service Complaints Ombudsman for the Armed Forces, has repeatedly found the service complaints process to be neither ‘efficient, effective or fair’. In particular, the Ombudsman has warned of the persistent evidence she has received that soldiers are dissuaded from making complaints or warned that it would not be in the best interests of their career to make a complaint.
The Army has a formal complaints process, which can be accessed here. There is a formal bullying and harassment policy, which can be accessed here. The policies in place at the time required the chain of command to check in on complainants around three months after they had informally resolved a bullying complaint, to ensure the behaviour had not recurred; and for a record of the complaint to be retained on both the unit records and on the equality and diversity logs for up to ten years. That did not happen.
In July 2019, the Wigston Review Into Inappropriate Behaviours recommended that responsibility for the investigation of serious service complaints alleging bullying, harassment and discrimination should be taken away from the single services’ chain of command and held by a new centralised Defence Authority. Despite initially stating that it accepted that recommendation, the Ministry of Defence has since resiled from it and confirmed that serious service complaints shall remain the responsibility of the single services themselves.
Judicial review of the Ministry of Defence's policy on service personnel contacting the media or Parliament
The CMJ is acting for three claimants that are challenging the MoD’s policy governing service personnel’s contact with the media or with Parliament.
The claimants are three service women that wish to speak out about sexual assault, sexual harassment, sexism and racism. The policy prevents them from doing so without first seeking the consent of the very institution they wish to criticise.
In this way, the policy amounts to a violation of their right to freedom of expression.
A blog and some press coverage of the case can be accessed here:
Alicia's Story - Human Rights Act claim as a result of military prosecutor failings
Alicia was the victim of a serious sexual assault in 2015. It was investigated by the service police, prosecuted by the Service Prosecuting Authority (SPA) and went to Court Martial. The case collapsed following serious failures on the part of the SPA prosecutor. It turned out that the prosecutor was the same prosecutor that had badly mishandled the case of the late Cpl Anne-Marie Ellement years before and which had, the Ellement family had been assured, resulted in important changes being made to the way such cases would be handled in the future. The CMJ acted for Alicia in her civil claim against the SPA, on the basis that her right to a competent and thorough investigation (including prosecution) of her allegation of sexual assault, as protected by Article 3 of the European Convention on Human Rights (the Human Rights Act) had been violated. The claim settled out of court in 2020. The BBC reported the case here:https://www.bbc.co.uk/news/uk-54614232
The Ellement family supported Alicia in bringing the claim and they have worked together to highlight the wider failures it revealed. Alicia’s experiences are yet further evidence of the need for fundamental reform to the way in which the military handles sexual assault cases. The Ellement family and Alicia are calling for all such cases, where they are alleged to have happened in the UK, to be handled by the civilian justice system.
Judicial review brought by three rape survivors
The Centre for Military Justice acted for three women who reported being raped while serving. Their cases were handled in the Service Justice System and were not investigated by civilian police, handled by the CPS or sent to Crown Court. They challenged the handling of these cases inside the Armed Forces and, in particular, the MoD’s recent rejection of a recommendation by a senior retired judge and former chief constable that all cases of rape should be handed over to civilian authorities.
The women relied on the Human Rights Act and the Equality Act.
In light of the judicial review, the Secretary of State said in June 2020 that he would give ‘fresh consideration’ to the matter.
Following that re-consideration, which took place over the summer and autumn of 2020, the Secretary of State determined that the matter of jurisdiction should now be placed on a statutory footing and would now be included within the Armed Forces Bill. He also agreed to review all of the internal policies and protocols governing the handling of sexual offences. The litigants insisted that a fresh Defence Instruction Notice (DIN) should be issued that would require all service personnel to be informed of their right to report any matter to the civilian police. This was initially refused by the Secretary of State, however upon the litigants’ refusal to agree a consent order in the case, the Secretary of State agreed to issue a new DIN.
The judicial review was settled on the basis that the Secretary of State agreed to place the matter before Parliament (which subsequently happened when the Armed Forces Bill was published (see Clause 7)), to consult with the public, and to review all the internal policies on the handling of sexual offences.
Lance Corporal Bernard Mongan
L/Cpl Bernard Mongan’s body was found in his room at Catterick Garrison at the end of January 2020.
His body had lain in his room, undiscovered, for 3 weeks before he was found. Bernie had been badly assaulted by two fellow soldiers at the end of 2018, and a police investigation was still ongoing when he died. Bernie told his wife that he was being bullied. A Service Inquiry reported to the family in July 2021 and was reported here: https://www.bbc.co.uk/news/uk-57791039 and here: https://www.mirror.co.uk/news/uk-news/bullied-soldier-who-lay-dead-24506635
The report says that “failings in the proper management of personnel led to the delay in the discovery of L/Cpl Mongan”. The report also states that Bernie’s complaints of bullying and concerns about his welfare had not been properly investigated or passed on. The panel which carried out the inquiry concluded that its report “makes for sobering reading”.
Because Bernie was left for so long, the family do not have a cause of death and the Coroner has opened an inquest.
The family has many questions about how Bernie died, whether the bullying or assault had anything to do with his death and how it was that he was left in his room on barracks, alone, for so long, with no-one in the Army apparently noticing or reporting him as missing.
A serving soldier who was the victim of sexual assault threatened judicial review proceedings against the MoD for its failure to institute a system of independent oversight of the Service Police, equivalent to the civilian system of police oversight. As a consequence of her judicial review, the MoD agreed to conduct a review of the system of service police oversight, the outcome of which was published in February 2020. The MoD states that it now accepts in principle the need for independent oversight of service policing and will consider the review’s proposals (for the creation of a ‘niche’ body) in more detail. Our blog on the review’s outcome can be found under News, above, dated 28 February 2020.
A serving soldier was the victim of a sexual assault. She threatened judicial review proceedings against the MoD, challenging the statutory power of a Commanding Officer to investigate for him/herself an allegation of sexual assault and the exclusion of sexual assault from the list of alleged crimes that had to be referred to the (service) police. This issue had been raised with the MoD by the families of the late Cpl Anne-Marie Ellement and the late Pte Cheryl James but had not resulted in the requested changes to the legislation. Following her letter before action, the MoD finally agreed to amend the legislation and it is now compulsory for all commanding officers to refer all allegations of sexual assault to the Service Police.
A former sailor, forced out of the Royal Navy because of his sexuality in 1995, was stripped of his Long Service and Good Conduct Medal and his Good Conduct Badges. Now elderly and in poor health, he asked to have them restored. Notwithstanding the lifting of the ban on LGBT people serving in the Armed Forces, the MoD refused. Judicial review proceedings were brought following which the MoD agreed to return the badges and medal, and to bring in a new policy which would allow other LGBT former service personnel to apply to have their medals restored. You can see more about his story on this BBC article
Joe is now working closely with the CMJ to ensure the promised policy is finalised as soon as possible so that other veterans may benefit from it. The CMJ is working with our partners to explore whether there are other, additional ways the MoD can support its LGBT veterans.
A soldier, Anna, reported a rape by a fellow male soldier but, following what she considered to be an inadequate service police investigation, her alleged assailant was not charged by the Service Prosecution Authority. After the SPA confirmed that it was not going to charge the alleged assailant, Anna’s Commanding Officer informed her that she would now be investigated under the Army’s own internal administrative procedures (known as ‘AGAI’) to determine if she had breached the so-called ‘Service Test’. This meant that she would have to undergo further interviews, investigation and other processes arising from the alleged rape and on the basis that her own conduct was now being called into question.
A soldier, Sarah, reported being sexually assaulted by a male soldier in her unit. The Service Police did not conduct an adequate investigation in several respects. This included the proposal, by the Royal Military Police, that Sarah agree to the alleged assailant admitting to the lesser charge of common assault, rather than the sexual assault with which he had been charged. Sarah lodged a formal complaint about various aspects of the conduct of the Service Police. While an apology was eventually offered and some organisational changes were made, the Professional Standards Unit declined to take any further action on the basis that the principle RMP soldier responsible had by then left the unit. The RMP failures in this case led, in the client’s firm opinion, to the male soldier being acquitted at Court Martial. When he acquitted the defendant, the Judge Advocate made very critical remarks about the RMP.
A soldier, Mary, reported being raped by a male soldier in her chain of command. The soldier she accused was acquitted at trial. However, Mary wanted to lodge a service complaint concerning the sustained sexual harassment she had suffered at the hands of the soldier before the alleged assault and the way in which her chain of command had treated her after her report of rape and while she waited for her case to come to court. Her service complaint was dismissed at the first stage but upheld almost entirely on appeal. A formal apology was offered, compensation was paid and it was accepted that the response of the Army to the entire situation had cost Mary her extremely promising career.