STRATEGIC DEFENCE REVIEW
The Government announced a Strategic Defence Review on 16 July 2024.
Submissions limited to 500 words on a number of themes were sought.
This short submission was submitted from the Centre for Military Justice and addresses the following theme only:
The approach to recruiting, educating, training and retaining the people needed for One Defence, including Regular, Reserve, Civil Service and industry. This is to include how Service life can be improved for those who commit to serve their country in uniform.
Remove the jurisdictional bar on the Employment Tribunal (ET) being able to hear employment law claims brought by service personnel who have not first made a Service Complaint.
Critical to recruitment and retention – particularly for those with protected characteristics such as sex or race – is the question of what happens when things go wrong. At the Centre for Military Justice, we support service personnel (SP) that have suffered bullying, harassment, discrimination or sexual assault, to exercise the limited employment law rights that they have.
We suggest that this limited reform could be made that could result in significant financial savings (because of the considerable time that is presently spent on dealing with lengthy Service Complaints that would be avoided) and would improve the employment law rights of SP. This will be popular both in the service community and in the country.
Background:
A Service Complaint (SC) is a way for SP to formally report a grievance or complaint, if they believe they have been ‘wronged’ in relation to any aspect of their service. The SC system is broken. It is riven with delay and SP do not trust it and consider it to be biased. In our experience, decisions are frequently made that are low in quality and ignorant, particularly in their handling of sexual assault and race discrimination complaints. Reforms introduced in June 2022 have made it worse for complainants, not better. We acknowledge that the new Government intends to reform the complaints system.
Section 121 of the Equality Act 2010 (EqA) excludes all SP from being able to bring an ET claim entirely unless they have ‘made and not withdrawn’ a SC. If a SP has not made or has withdrawn a SC about the same matter as they wish to bring a claim, then the ET simply has no jurisdiction to hear it and it must be dismissed.
The rationale for this clause was so that the services may have an opportunity to address an issue themselves without litigation. However, as long as the SC system is broken, all this does is trap the SP inside a biased system that does not work. In any event, even if the SC system did work (or worked better), which is to hoped may be the consequence of the reforms to come, it is not and could never be an adequate alternative to a right to bring a claim to an independent tribunal – a right that all other civilian employees enjoy.
There may be lot of very good reasons for a SP to try and resolve their matter internally before resorting to litigation. Many would be best advised to try and do so. But for the jurisdiction of the independent ET to depend upon their having done so, and for their claim to fail if they have not made and appealed an internal complaint, when no such requirement exists in any other jurisdiction, is both oppressive and unfair.
We recommend that the relevant parts of the EqA should be amended so that SP should no longer be required to make and not withdraw an SC in order to secure access to justice.
Centre for Military Justice
25/09/24