Edwards v Ministry of Defence appeal dismissed by the EAT


The Employment Appeal Tribunal handed down the judgment in Edwards v Ministry of Defence yesterday, dismissing the appeal.

The claimant, a Lance Corporal in the British Armed Forces, had sought to bring a claim of race discrimination and applied to amend her claim to bring claims sex discrimination, harassment related to sex and victimisation. At first instance, the Employment Tribunal determined that it did not have jurisdiction to hear the race discrimination claim and refused the application to amend, because the claimant had not made a service complaint about any of those “matters”, as required by section 121(1) of the Equality Act 2010. 

The claimant appealed, raising – among other issues – that the approach of the Employment Judge was not consistent with the rights guaranteed by Article 6 of the European Convention on Human Rights. 

In dismissing the appeal, the Employment Appeal Tribunal gave helpful guidance on the meaning of raising a service complaint about the ‘matter’, which will be relevant to future claims under the Equality Act 2010 involving members of the Armed Forces.  In particular:

  • Section 121 of the Equality Act 2010 ‘requires a complainant who subsequently brings an EQA claim, to have indicated in their service complaint that their complaint alleges discrimination and/or harassment and the protected characteristic that they rely upon, or, where the Tribunal claim is one of victimisation, that they were victimised because of some action that it can be seen is capable of amounting to a protected act’ (para 92);
  • The assessment of ‘whether the act complained of in the Tribunal claim was “the matter” raised in the earlier service complaint is to be approached in a non-technical way, by identifying the substance of the service complaint, reasonably read and assessed as a whole’ (para 91);
  • Accordingly, ‘the service complaint need not use the words “discrimination” “harassment” or “victimisation”’ nor ‘refer to the relevant protected characteristic/s by the terminology used in the EQA or to use the phrase “protected act”’ provided this was ‘in substance and considered reasonably in the round […]  the nature of the allegation being made’ (para 92); and
  • This approach is consistent with a ‘purposive construction’ of section 121 and Article 6 of the European Convention on Human Rights.

Julian Allsop and Anna Williams, led by Adam Tolley KC, successfully appeared on behalf of the Ministry of Defence. They were instructed by the Government Legal Department.

A link to the judgment is here:


Julian Allsop

Call: 1999

Anna Williams

Call: 2019

Related Practice Areas

Employment & Discrimination

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