![AC-2023-LON-002285 - [2024] EWHC 1094 (Admin)](https://backend.juristeca.com/files/emisores/logo_fi51A75.png){kind=logo}
Section 3
…
A person may make a service complaint after the end of the period in whichever of paragraphs (1) and (4) applies to the complaint if, in all the circumstances, the specified officer considers it just and equitable to allow this.”
Regulation 7 of the 2015 Regulations deals with the role of the Ombudsman in reviewing decisions on inadmissibility and the time limits for requesting such a review. It is the meaning of this Regulation, and words used in Regulation 7(2) relating to the time limits in particular, which is at the core of the principal point of dispute in this judicial review claim.
Regulation 7 provides as follows:
“(1) After receiving an application by the complainant for review of the specified officer’s decision that a service complaint is not admissible, the Ombudsman must decide whether the service complaint is admissible and notify both the specified officer and the complainant in writing of his or her decision and the reasons for it.
(2) The Ombudsman must not consider an application under paragraph (1) made after four weeks beginning with the day the complainant received notification of the specified officer’s decision, unless the Ombudsman considers it is just and equitable to allow the complainant to apply after that period.
(3) A decision by the Ombudsman in relation to admissibility is binding on the complainant and the specified officer.
(4) Where under paragraph (1) the Ombudsman decides that the service complaint is admissible, the specified officer must refer the complaint to the Defence Council as soon as reasonably practicable.”
Although not an issue before me, it is worth noting that Regulation 12(2) of the 2015 Regulations relating to a different function of an Ombudsman (namely reviewing of the Defence Council’s decision under regulation 11(2) on whether an appeal can be proceeded with) contains similar wording to that in relation to Regulation 7(2). Regulation 12(2) provides:
“(2) The Ombudsman must not consider an application under paragraph (1) made after four weeks beginning with the day the complainant received notification of the decision under regulation 11(2), unless the Ombudsman considers it is just and equitable to allow the complainant to apply after that period.
The Explanatory Note to the 2015 Regulations states:
“Regulations 7 and 12 provide respectively for the Service Complaints Ombudsman to review a specified officer’s decision that a complaint is not admissible and a Defence Council decision that an appeal may not be proceeded with. Regulation 7(2) and 12(2) specify the periods for applying for such a review and the circumstances in which an application may be considered after such a period.”
The Interested Party’s policy and guidance on service complaints is set out in JSP 831: Redress of Individual Grievances: Service Complaints.
There is an important interaction between the service complaints regime and the jurisdiction of the Employment Tribunal (“the ET”) under the Equality Act 2010 (“the EA 2010”).
Section 120(1) of the EA 2010 provides that the ET has jurisdiction to determine a complaint relating to a contravention of Part 5 of the EA 2010 (work). However, in the case of members of the armed forces, this jurisdiction is subject to an important qualification set out in section 121 of the EA 2010 concerning the requirement on the person to have made, and not withdrawn, a service complaint.
Section 121 of the EA 2010 provides (so far as material):
“(1) Section 120(1) does not apply to a complaint relating to an act done when the complainant was serving as a member of the armed forces unless—
(a) the complainant has made a service complaint about the matter, and
(b) the complaint has not been withdrawn.
(2) Where the complaint is dealt with by a person or panel appointed by the Defence Council by virtue of section 340C(1)(a) of the 2006 Act, it is to be treated for the purposes of subsection (1)(b) as withdrawn if –
(a) the period allowed in accordance with service complaints regulations for bringing an appeal against the person's or panel's decision expires, and
…
(b) either—
(i) the complainant does not apply to the Service Complaints Ombudsman for a review by virtue of section 340D(6)(a) of the 2006 Act (review of decision that appeal brought out of time cannot proceed), or
(ii) the complainant does apply for such a review and the Ombudsman decides that an appeal against the person’s or panel’s decision cannot be proceeded with.”
(6) In this section –
“the 2006 Act” means the Armed Forces Act 2006;
“service complaints regulations” means regulations made under section 340B(1) of the 2006 Act.”
One of the issues which potentially arises for determination by the ET in the ET proceedings between the Claimant and the Interested Party (on which I have sought to avoid trespassing) is as to the meaning and application of section 121(1) and (2) where a service complaint is submitted which the complaint contends alleges disability discrimination, but the complaint is treated as inadmissible by the specified officer and an application for review of that decision is rejected by the SCOAF.
For the purposes of this claim, particular attention is drawn by the Claimant to section 123(1) and (2) of the EA 2010 which deals with the time limits for making discrimination complaints in relation to sections 120 and 121. Section 123 provides (so far as material):
“(1) Subject to section 140B, proceedings on a complaint within section 120 may not be brought after the end of-
(a) the period of 3 months starting with the date of the act to which the complaint relates, or
(b) such other period as the employment tribunal thinks just and equitable.
Proceedings may not be brought in reliance on section 121(1) after the end of-
the period of 6 months starting with the date of the act to which the proceedings relate, or
such other period as the employment tribunal thinks just and equitable.”
The Claimant submits that if the same delay in question here before the SCOAF had been a matter before the ET by way of a discrimination complaint, the ET would have a wide discretion to consider whether, in all the circumstances of the case, it would have been just and equitable to extend time for that complaint to be considered, and this would entitle the ET to consider all the circumstances, including potential prejudice arising on both sides in the event that the extension were granted or denied.
In that respect, the Claimant has referred to a substantial body of caselaw that deals with the nature of the discretion afforded to the ET under s.123 of the Equality Act 2010. The Claimant refers to:
Miller & ors vMinistry of Justice & ors EAT 0003/15 (Laing J) to the effect that:
the discretion to extend time is a wide one;
time limits are to be observed strictly in ETs and there is no presumption that time will be extended unless it cannot be justified; the reverse is true: the exercise of discretion is the exception rather than the rule;
if a tribunal directs itself correctly in law, the EAT can only interfere if the decision is, in the technical sense, ‘perverse’, i.e. no reasonable tribunal properly directing itself in law could have reached it, or the tribunal failed to take into account relevant factors, or took into account irrelevant factors, or made a decision which was not based on the evidence;
what factors are relevant to the exercise of the discretion, and how they should be balanced, are a matter for the tribunal. The prejudice that a respondent will suffer from facing a claim which would otherwise be time- barred is customarily relevant in such cases;
the tribunal may find the checklist of factors in section 33 of the Limitation Act 1980 helpful, but this is not a requirement and a tribunal will only err in law if it omits something significant.
Southwark LBC v Afolabi [2003] ICR 800 in whichthe Court of Appeal confirmed that, while the checklist in section 33 of the Limitation Act 1980 provides a useful guide for ETs, it need not be adhered to slavishly and there are two factors which are almost always relevant when considering the exercise of any discretion to extend time: the length of, and reasons for, the delay; and whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh).
Department of Constitutional Affairs v Jones [2008] IRLR 128 in which the Court of Appeal confirmed that while the factors referred to by the EAT in British Coal Corporation v Keebleare a ‘valuable reminder’ of what may be taken into account, their relevance depends on the facts of the individual cases and tribunals do not need to consider all the factors in each and every case.
Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] ICR 1194 in which the Court of Appeal identified that it was plain from the language used in s.123(1) that Parliament had chosen to give the employment tribunal the widest possible discretion and it would be wrong to put a gloss on the words of the provision or to interpret it as if it contains a list of factors referred to in s.33 of the Limitation Act 1980 as referred to in the Keeble case. I note that the Court of Appeal also identified that because of the width of that discretion, there is very limited scope for challenging the ET’s exercise of that discretion as to what is just and equitable and an appellate court or tribunal should only disturb the tribunal’s decision if the tribunal “has erred in principle – for example, by failing to have regard to a factor which is plainly relevant and significant or by giving significant weight to a factor which is plainly irrelevant – or if the tribunal’s conclusion is outside the very wide ambit within which different views may reasonably be taken about what is just and equitable” see Leggatt LJ (as he then was) at [20] and as applied at [25]).
Chief Constable of Greater Manchester Police v Carroll [2017] EWCA Civ 1992 in which the Court of Appeal summarised the balance of prejudice test and the burden being on the claimant to show that his or her prejudice would outweigh that to the defendant.
Wells Cathedral School Ltd v Souter (UKEATPA/0836/20/JOJ), a decision of the EAT on the exercise of the just and equitable discretion.
Lupetti v Wrens Old House Ltd [1984] ICR 348, EAT as a decision that proceeded on the basis that the merits of a claim may be a relevant factor in the exercise of the discretion to extend time; and
Kumari v Greater Manchester Mental Health NHS Foundation Trust [2022] EAT 132, a decision of the EAT considering Lupetti and concluding that it is not necessarily wrong to take into account the merits of a claim.
In relation to the nature of the discretion under s.123 of the EA 2010, it is also important to have in mind the caution emphasised by the Court of Appeal in treating the Keeble factors as a framework for the ET’s approach and the importance of avoiding too mechanistic an approach: see Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23, Underhill LJ at [37]-[38].
In response to the Claimant’s reliance on s.123 and the nature of the discretion afforded to an ET under that statutory regime, the Defendant and Interested Party do not materially dispute the Claimant’s analysis and the caselaw that has been identified. Neither disputed that an ET would be entitled to take into account the merits of an underlying complaint when exercising that discretion. The Defendant and Interested Party submit, however, that the ET’s discretion in s.123 of the Equality Act 2010 is different to that given to the Ombudsman in Regulation 7(2) of the 2015 Regulations. They submit that the latter is deliberately more circumscribed, having regard to the different words used in Regulation 7(2) and it does not permit consideration by the Ombudsman of the merits of the underlying service complaint. Indeed, the Defendant and Interested Party’s point is essentially that if it had been intended to give the Ombudsman the same width of discretion that is afforded to the ET under s.123 of the EA 2010, then similar words would have been used but they were not.
These competing points of view were also expressed by the parties in relation to other discretions afforded under other statutory regimes to consider complaints or actions made outside specified time limits.
Thus, for example, at the hearing I raised the issue of the High Court’s analysis of section 7(5) of the Human Rights Act 1998 in Alseran and others v Ministry of Defence [2017] EWHC 3289 (QB), Leggatt J (as he then was) at [849] and following. Under that provision, proceedings must be brought before the end of 1 year beginning with the date on which the act complained of took place or “such longer period as the court or tribunal considers equitable having regard to all the circumstances”. In Dunn v Parole Board [2008] EWCA Civ 374, [2009] 1 WL 728 the Court of Appeal had identified that it was not appropriate for the courts to put any gloss on the words used in section 7(5)(b) of the Human Rights Act 1998, nor to fetter the very wide discretion given to the court by listing factors to be taken into account, or the weight to be attached to them. This approach was confirmed by the Supreme Court in Rabone v Pennine Care NHS Trust [2012] UKSC 2, [2012] 2 AC 72, Lord Dyson at [75]. Applying that approach to section 7(5) in Alseran, it is clear that Leggatt J did take into account the merits of the claim (see [868] onwards), noting that in Rabone Lord Dyson had (at [79]) described as the “most important of all” the points which had militated in favour of extending time the fact that the claimants had a good claim for a breach of a Convention right (see also Lady Hale in Rabone at [108]). Leggatt J went on to state at [869] in Alseran:
“In a case where the delay in bringing proceedings has caused significant evidential prejudice to the defendant, it would plainly be wrong to treat the merits of the claim as a factor weighing in the claimant's favour – at least insofar as the court's assessment of the merits is based on findings of fact which might have been different if the claim had been begun promptly and the defendant had not been disadvantaged. In the present cases, however, it has not been shown that the MOD has suffered significant evidential prejudice as a result of the claimants' delay in bringing the proceedings. In these circumstances it seems to me legitimate to take into account in deciding whether to exercise the discretion to extend time the fact that a refusal to do so would prevent the claimants from obtaining any redress for proven violations of their fundamental human rights not to be subjected to inhuman or degrading treatment and not to be unlawfully and arbitrarily detained.”
The Claimant would rely on the width of the discretion afforded to a decision-maker when deciding what is considered to be “equitable”, and as allowing the decision-maker to consider the merits of the underlying claim. By contrast, the Defendant and Interested Party rely upon the difference of wording in those different statutory regimes as compared with Regulation 7(2) of the 2015 Regulations. I will return to this basic difference between the parties under Ground 1.
Returning to other relevant provisions in the EA 2010, it is also relevant to note that the EA 2010 has other relevant provisions disapplying its potential application to the armed forces in certain circumstances. Amongst other things, paragraph 4 of Schedule 9 of the EA 2010 provides as follow:
“Armed forces
4(1) A person does not contravene section 39(1)(a) or (c) or (2)(b) by applying in relation to service in the armed forces a relevant requirement if the person shows that the application is a proportionate means of ensuring the combat effectiveness of the armed forces. [emphasis added]
(2) …
(3) This Part of this Act, so far as relating to age or disability, 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.”
Again, these provisions give rise to potential issues in the ET proceedings between the Claimant and the Interested Party. The Claimant has brought proceedings against the Interested Party in the ET alleging disability discrimination. As alluded to already, the Interested Party is arguing in those proceedings (amongst other things) that because the Claimant’s service complaint was decided to be inadmissible, and the SCOAF decided not to review that decision because the application to do so was made out of time, the Claimant is not entitled to bring his claim in the ET by virtue of section 121 of the EA 2010. However, the Interested Party is also advancing an argument that the jurisdiction of the ET is excluded in any event by reason of paragraph 4 of Schedule 9 to the EA 2010, and the provisions relating to the exclusion of disability discrimination claims against the Armed Forces in the circumstances specified. The Claimant is opposing both those arguments in the ET proceedings. In respect of the latter argument, the Claimant is placing reliance on an ET decision in the case of T v MOD (ET 2201755/2021) which considers arguments that invoke the Human Rights Act 1998.
The Claimant is no longer pursuing any arguments based on the Human Rights Act1998 in respect of this claim, and both of those arguments are matters which are being considered by the ET which do not arise for determination in this claim.
Finally, I note that the Claimant has also sought to rely on an ET judgment on a preliminary issue in the case of Miss B Lodge (1) and Mr S McVicker-Orringe (2) v MOD (2403443/2020 & 2403445/2020 30/11/21) on time limits and a SCOAF assessment under Regulation 7. In that case the ET stated (amongst other things):
“91. However, I note that while the SCOAF considered the question of time limits and the question of a just and equitable extension, I was not satisfied from the SCOAF written decision, that there had been a proper consideration of the application of time limits as they might be determined by a Tribunal under section 123 EQA and especially with regards to the just and equitable grounds advanced by the claimant. Accordingly, the SCOAF had accepted that the substance of these HoC were not the same as earlier service complaints and potentially they were admissible complaints. However, I find that it would be contrary to the legal principles discussed in the previous paragraph to prevent the claimants from having an admissible service complaint because of an insufficiently considered procedural defect.”
In my judgment, that is a matter which relates to the question of the ET’s jurisdiction and the approach it takes to that jurisdiction, rather than being a matter for determination by me in these proceedings. It does not directly bear on the issues that are raised in this claim as to the lawfulness of the SCOAF’s decisions under challenge.