We have adopted a specialist team approach to our practices for many years. We feel that this is the way our clients want us to work, and that specialisation leads to the provision of a better service.
We have adopted a specialist team approach to our practices for many years. We feel that this is the way our clients want us to work, and that specialisation leads to the provision of a better service.
Insights
06/01/2026
By Julian Allsop and Anna Williams
The Employment Appeal Tribunal has recently handed down judgment in the joined appeals of Mr L and Paul Dunn v Ministry of Defence [2025] EAT 197, which addressed the scope of disability discrimination protections under the Equality Act 2010 (“EqA 2010”) in relation to service in the armed forces.
The appeals concerned claims by two former members of the armed forces. Mr L alleged that his discharge, following a diagnosis of HIV, amounted to disability discrimination. Mr Dunn sought retrospective redesignation of his discharge on medical grounds, which was refused. He alleged that this constituted a failure to make reasonable adjustments. Under the terms of the Equality Act 2010, neither claimant was able to pursue these claims. Both claimants therefore argued that the relevant provisions of the Equality Act 2010 should be interpreted compatibly with Articles 6, 8, and/or 14 of European Convention on Human Rights (“Convention”). They sought wording to be read into the legislation by the Employment Tribunal to enable them to bring these claims.
Mr L sought to have paragraph 4(3) of Schedule 9 to the Equality Act 2010 read to prohibit disability discrimination in relation to service in the armed forces in respect of HIV only, proposing the following wording:
“(3) This Part of this Act, so far as relating to age or disability other than HIV, does not apply to service in the armed forces; and section 55, so far as relating to disability, does not apply to work experience in the armed forces.”
Relying on an earlier Employment Tribunal decision of T v Ministry of Defence (Case No 3309378/2023), Mr Dunn sought to have section 108 of the Equality Act 2010 (concerning post-termination discrimination) read as if it allowed claims by ex-service personnel, proposing:
“(1) 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 dis-applied by paragraph 4(3) of Schedule 9).”
Both the Newcastle and Watford Employment Tribunals held that the claimants’ claims were barred, and the Equality Act 2010 could not be interpreted to allow such claims to be brought.
The EAT, presided over by Mr Justice Linden, upheld these decisions, finding that:
The EAT expressly overruled the earlier decision in T v MOD where it had previously been held that section 108 could be interpreted to allow ex-service personnel to bring disability discrimination claims. The EAT clarified that:
The EAT has therefore helpfully provided confirmation that members and former members of the armed forces do not have (and have never had) the right to protection from disability discrimination with respect to matters related to their service, including post-termination acts. Further, in considering the interpretative obligation under s.3 of the Human Rights Act 1998, it is permissible to ‘put the cart before the horse’ and consider whether the proposed Convention compatible wording of legislation went against the grain of the legislation, on the assumption that it was incompatible with a relevant Convention right, without first carrying out an analysis of whether the legislation was actually incompatible as such.
Julian Allsop and Anna Williams represented the Ministry of Defence in both appeals at the hearing before the Employment Appeal Tribunal.
They were part of a legal team that included Niazi Fetto KC and Harry Peto of 2 Temple Gardens (in the appeal of L v MOD).
Julian and Anna were instructed by Felicity Carroll and Ryan Halmkan of the Government Legal Department.
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