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||BAILII case number:  UKEAT 0463_10_1504
||Appeal No. UKEAT/0463/10
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
||At the Tribunal
||On 11 March 2011
||Judgment delivered on 15 April 2011
THE HONOURABLE MR JUSTICE SILBER
|MR C MOLAUDI
|MINISTRY OF DEFENCE
Transcript of Proceedings
© Copyright 2011
|For the Appellant
||MR RICHARD POWELL
Messrs Wace Morgan
|For the Respondent
||MR ASHLEY SERR
The Treasury Solicitor (Employment Law Team)
One Kemble Street
The Claimant sought to bring a claim for racial discrimination against the defendant relating to events which occurred while the Claimant was a serving soldier. He had previously made a complaint about the same matters to the military authorities, which was not brought in time and which was rejected.
The Employment Tribunal held that (a) pursuant to section 75(9) of the Race Relations Act 1976 as amended, a "service complaint" had to be brought to the military authorities before a claim could be brought in the Employment Tribunal; and (b) a complaint to the military authorities which was brought out of time and was rejected by the military authorities was not a valid "service complaint" and so the pre-condition for bringing a claim in front of the Employment Tribunal was not satisfied. There were adequate judicial procedures in this country "available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them" as specified in article 7 of the Directive.
The Claimant appealed on (b).
Held: Dismissing the appeal
(1) The term "service complaint" meant a complaint which could be considered substantively and that meant a complaint rejected by the military authorities brought out of time did not fall within that definition; and
(2) The Racial Discrimination Directive 2000/43/EC did not require a different meaning to be given to the words "service complaint" so that it covered a complaint to the military authorities which was brought out of time.
THE HONOURABLE MR JUSTICE SILBER
- Collen Molaudi ("the Claimant") appeals against a decision of Employment Judge Shepherd dated 2 July 2010 by which he ordered that the provisions in section 75(9) of the Race Relations Act 1976 ("RRA") meant that the Claimant was debarred from presenting a claim against the Ministry of Defence ("the Respondent").
- The decision under appeal raises the issue of whether the Claimant had complied with the statutory pre-requisite for bringing a claim for racial discrimination in an Employment Tribunal, which was that it was necessary to bring a "service complaint" in circumstances when he made such a complaint but which had been rejected as being brought out of time. The Employment Judge held that in those circumstances, the Claimant had not complied with the statutory pre-requisite for making a complaint to the Employment Tribunal and that is the decision under appeal.
- It is common ground that the issue has to be determined by reference to the interpretation of the statutory material together with the Racial Discrimination Directive 2000/43/EC ("the Directive"). In those circumstances, the undisputed facts can be summarised relatively briefly.
The Findings of the Employment Judge
- The Employment Judge found that the Claimant, who is a citizen of Botswana, enlisted with the Army in October 2008. His career as a soldier was unfortunately not happy. He alleges that he suffered an initial period of racial harassment while in 20 Platoon Infantry Training Centre Catterick from November 2008 until February 2009 but he apparently made no complaint during or immediately after that period.
- The Claimant was then transferred to 26 Platoon and he was thereafter guilty of repeated failings including being absent without leave, poor time keeping and dishonesty. In a letter of 26 June 2009, the Claimant appears to have admitted those failings, blaming his drinking problem.
- The Claimant was discharged from the Army with effect from 20 July 2009, as his services were "no longer required". The Claimant's solicitors wrote to the Respondent on 26 July 2009 and 30 September 2009 intimating a claim in respect of personal injury arising out of a "non freezing cold injury".
- On 25 November 2009, the Claimant's solicitor submitted a service complaint, which contended that the Claimant had been the victim of race discrimination. On 3 February 2010, the complaint was rejected by the appropriate military authorities as being out of time and that as there were no extenuating or mitigating factors, the matter was closed. The Claimant then lodged an ET1 claiming racial discrimination. The Respondent contended that the Employment Tribunal had no jurisdiction to hear the complaint as the Claimant had failed to comply with a statutory prerequisite to bringing a claim in the Employment Tribunal, which was that a proper "service complaint" had been made.
- The Employment Judge upheld this objection explaining that:-
"29. Mr Hardiman, on behalf of the claimant, submitted that the Tribunal has discretion to deal with the matter as the respondent could say that a bona fide complaint was out of time. It could be one day late and that could preclude recourse to a Tribunal and it was inappropriate to surmount the jurisdiction of the Tribunal. A judicial review was inappropriate. The just and equitable test should have been applied by the officer concerned and the Tribunal should be able to exercise its discretion. I have considered this carefully. The legislation is clear that no complaint can be presented to a Tribunal unless a service complaint has been made. A service complaint cannot be said to have been made if it was not accepted as out of time under the Armed Forces Regulations. The time limits in those regulations are clear and there is a reason for such time limits. The question of whether it is just and equitable to extend that time limit has already been considered by the prescribed Officer and cannot be reconsidered by the Tribunal.
30. In the circumstances the Tribunal has no jurisdiction to consider the claim."
The Statutory Provisions
- Members of the Armed Forces who wish to bring claims of racial discrimination before an Employment Tribunal are required to make a "service complaint" before bringing a claim on the same basis to an Employment Tribunal. At the time when the Claimant made his complaint, the statutory requirement in respect of claims for race discrimination was to be found in section 75(8)-(10) of the RRA and which has now been re-enacted in the Equality Act 2010. The relevant provisions in the RRA stated (with a provision in the original version which, I was reminded when the draft of this judgment was circulated to counsel, later ceased to have effect when section 75(9A) was enacted and the regulation set out in paragraph 11 below came into effect) that: -
"(8). This sub-section applies to any complaint by a person ("the complainant") that another person –
(a) has committed an act of discrimination against the complainant which is lawful by virtue of section 4; or
(b) is by virtue of section 32 or section 33 to be treated as having committed such an act of discrimination against the complainant.
If at the time when the act complained of was done the complainant was serving in the Armed Forces and the discrimination in question relates to his service in those Forces.
(9) No complaint to which sub-section (8) applies shall be presented to an Employment Tribunal under section 54 unless (a) the complainant has made a service complaint in respect of the act complained of; and (b) The Defence Council have made a determination with respect to the service complaint;
(9A) Regulations may make provisions enabling a complaint to which sub-section (8) applies to be presented to an Employment Tribunal under section 54 in such circumstances as may be specified by the regulations, notwithstanding that sub-section (9) would otherwise preclude the presentation of the complaint to an Employment Tribunal;
(10) In this section-
.. (aa) "regulations" means regulations made by the Secretary of State;
(ac) "Service Complaint" means a complaint under section 334 of the Armed Forces Act 2006."
- It is common ground that the complaint which has been made by the Claimant to the Employment Tribunal is one which is covered by section 75(8), but the issue is whether section 75(9) precludes a complaint being made to the Employment Tribunal because the provisions in section 75(9)(a) have not been complied with as the Claimant has not "made a service complaint in respect of the act complained of".
- To understand more of this dispute, it is necessary to explain that "the regulations" referred to in section 75(9A) and 75(10aa) are the Race Relations (Complaints to Industrial Tribunals) Armed Forces Regulations 1997 ("the 1997 Regulations"). These now state, in so far as is material, that:-
"2. (1) A person may present a complaint to an Employment Tribunal under section 54 of the Race Relations Act 1976, notwithstanding that section 75(9) of that Act would otherwise preclude the presentation of such a complaint, where—
(a) he has made a complaint in respect of the same matter to an officer under the service complaint procedures;
..(3) In this regulation – "the service complaint procedure" means the procedure prescribed by regulations under section 334 of the Armed Forces Act."
- The effect of regulation 2(1) of the 1997 Regulation and section 75(9)(a) of the RRA is that a requirement for bringing a race relations complaint against the military authorities in the Employment Tribunal is that a prior complaint has been made in respect of the same matter under "the service complaint procedure". When a draft of this judgment was circulated to counsel, I was reminded that the additional requirement in the words underlined in section 75(9)(b) and set out in paragraph 9 above, ceased to have effect when section 75(9A) was enacted and the regulation set out in paragraph 11 below came into effect.
- This appeal requires consideration of the proper meaning of the term "the service complaint procedure". Section 334 of the Armed Forces Act 2006 states, in so far as is material, that:-
(a) a person subject to service law thinks himself wronged in any matter relating to his service, or
(b) a person who has ceased to be subject to service law thinks himself wronged in any such matter which occurred while he was so subject,
he may make a complaint about the matter under this section (a "service complaint").
(2) But a person may not make a service complaint about a matter of a description specified in regulations made by the Secretary of State.
(3) The Defence Council must by regulation make provision with respect to the procedure for making and dealing with service complaints.
(4) The regulations must in particular make provision requiring—
(a) a service complaint to be made to an officer of a prescribed description;
(b) the officer to whom a service complaint is made to decide whether to consider the complaint himself or to refer it to a superior officer of a prescribed description or to the Defence Council;
(5) Without prejudice to the generality of subsections (3) and (4), the regulations may also make provisions—
(a) as to the way in which a service complaint is to be made (including provision as to the information to be provided by the complainant);
(b) that a service complaint, or an application of a kind mentioned in sub-section (4)(c) or (e), may not be made, except in prescribed circumstances, after the end of a prescribed period.
(6) A period prescribed under subsection (5)(b) must not be less than three months beginning with the day on which the matter complained of occurred.
(7) If, under provision made by virtue of subsections (3) and (4)—
(a) an officer decides to consider a service complaint himself..
the officer.. must decide whether the complaint is well-founded.
(9) In this section "prescribed" means prescribed by regulations made by the Defence Council."
- The complaint made by the Claimant would fall within these provisions. The appropriate time limits for making a "service complaint" are set out in The Armed Forces Redress of Individual Grievance (Procedures and Time Limits) Regulations 2007, which state in so far as is material, that:-
"11(a) The prescribed officer shall decide whether the complainant had delivered his statement of complaint within the period provided for in regulations 15 to 17;
(b) Subject to regulation 18 the prescribed officer decides that the complainant has made his complaint outside the periods provided for regulation 15-17 he shall not consider the service complaint…;
14. Subject to regulation 17 and 18, a person shall not make a service complaint after the end of the period provided in which of regulations 15 and 16 applies to his complaint;
15. Except in the case of a complaint to which regulations 16 applies, the period referred to in regulation 14 shall be 3 months from the date on which the matter complained of occurred…;
18. (a) This regulation does not apply to a service complaint within regulation 17;
(b) A service complaint may be made on a date after the end of the period provided in whichever regulations 15 and 16 applies to the complaint if the prescribed officer considers in all the circumstances of the case that it is just and equitable to do so".
- The prescribed officer rejected the complaint of the Claimant pursuant to these provisions because it was made out of time and as I have explained the Employment Tribunal considered that this meant the pre-condition for bringing a complaint to that tribunal had not been satisfied.
- The grounds of appeal are that the Employment Tribunal should have decided that the Claimant had made a valid complaint in respect of the same matter as he was making to the Employment Tribunal to "an officer under the Service Complaint Procedures" thereby complying with section 75(9). It is also said by Mr Richard Powell counsel for the Appellant that the Employment Tribunal erred by interpreting the provision in section 75(9)(a) that the Claimant "made a service complaint" as meaning "making a timely service complaint or one accepted by the respondent".
- It is also contended by the Appellant that the Tribunal should as a matter of law have had regard to Article 7 of the Directive, which would and should have led to the Regulations being construed in such a way that the failure to submit a complaint under the service procedures within the time limit would not preclude a claim being made in front of the Employment Tribunal.
- Mr Ashley Serr counsel for the Respondent contends that the Employment Judge was correct and that no "service complaint" which accords with the statutory provisions was made with the result that the Employment Tribunal did not have jurisdiction to deal with the Claimant's application.
- The fundamental issue in this case is what is meant by the words "service complaint" and in particular whether a claim that was held by the service authorities to be time-barred could fall within that description. That entails considering what these words actually mean and whether the Directive requires a different meaning to be attributed to those words.
- The starting point is the classic definition of the plain meaning rule for construing statutes, which was expressed by Lord Reid as follows:-
"In determining the meaning of any word or phrase in a statute the first question to ask always is what is the natural ordinary meaning of the words or phrase in its context in the statute?" (Pinner v. Everett  1WLR 1266, 1273).
- In this case, the term "service complaint" in section 75(9) RRA has to be construed in the context of the subsequent words, which were included when the RRA was passed and they are that "(b) the Defence Council have made a determination with respect to the service complaint".
- The role which the Defence Council could perform was summarised in respect of the position then prevailing by Maurice Kay J (as he then was) in Melbourne v Ministry of Defence  UK/EAT 522 where he explained when giving the judgment of this Appeal Tribunal that:-
"10. ..Thus, in relation to acts which occurred prior to 1 October 1997, an individual is limited to the service redress procedure but, in relation to acts occurring after that date, he may proceed in an employment tribunal but only if he satisfies the new section 75(9) by first using the service redress procedure. The relevant service redress procedure is set out in section 180 of the Army Act 1955 and the Queen's Regulations. It provides for complaint to an officer who refers it to a superior officer for investigation. If the complainant is dissatisfied with the outcome, he may complain to the Defence Council. If the complaint relates to a court-martial, section 180 does not apply but alternative remedies are set out in section 113 (review of finding a sentence by the Defence Council)…
I3… [Section 75(9)] is in clear and unambiguous terms. A member of the armed forces can only present a complaint of race discrimination to an Employment Tribunal if he has made complaint to an officer under the appropriate procedure and has submitted that complaint to the Defence Council and the Defence Council have made a determination with respect to it. In the absence of compliance with section 75(9), an Employment Tribunal has no jurisdiction to consider the complaint. In the present case, the Appellant did not resort to the appropriate service redress procedure in relation to the post-October 1997 allegations".
- As is shown by section 334(4) of the Armed Forces Act 2006 (which is set out in paragraph 13 above), the Defence Council can now also have matters remitted to them by the prescribed officer but the important point is that the Defence Council whether acting in that capacity or when acting as an appellate body could only deal with a "service complaint", which had been both accepted as being in time and which had been the subject of a determination by the prescribed officer.
- So a complaint which has not been accepted by the prescribed officer cannot be dealt with by the Defence Council. It must therefore follow that the intention of the legislature was that a "service complaint" was a complaint which was accepted as valid by the prescribed officer as otherwise it could not have been considered by the Defence Council. As I will explain, the decision of the prescribed officer to refuse to accept what purports to be a "service complaint" can be challenged by judicial review.
- When a draft of this judgment was circulated to counsel, I was reminded that the additional requirement in the words underlined in section 75(9)(b) and set out in paragraph 9 above, ceased to have effect when section 75(9A) was enacted and the regulation set out in paragraph 11 below came into effect. I am satisfied that this does not signify that the meaning of the words "service complaint" has altered. There is no reason why it should now have a different meaning. (I should add that when I circulated a draft of this judgment to counsel for typing corrections, I had stated that I believed that the words underlined in section 75(9)(b) and set out in paragraph 9 above had been repealed and that this did not mean that the words "service complaint" should have a different meaning in consequence. The fact that those words were not repealed, if anything, fortifies my conclusion on the meaning of those words.)
- A second reason why I consider that a "service complaint" must mean a complaint which has been accepted by the appropriate prescribed officer as being valid is that this meaning is consistent with the purpose of the provisions in requiring a complaint to the prescribed officer as a pre-requisite to making a complaint to the Tribunal. There is much authority to the effect that "a certain amount of common sense [must be applied] in construing statutes" (per Lord Goddard CJ in Barnes v. Jarvis  1WLR 649, 652).
- The structure of the provisions to which I have already referred is that a pre-requisite for making a complaint of racial discrimination by a soldier to the Employment Tribunal is that he or she had previously made a valid service complaint to the army authorities, which had been determined on its merits. If a valid service complaint was not a pre-requisite, then all that would be required to constitute a "service complaint" would be a simple short note made long after the event by a dissatisfied soldier saying that he has suffered from racial discrimination without giving any particulars and therefore not allowing the prescribed officer to make a sensible or realistic determination of it. This indicates clearly that what is required for a "service complaint" is a valid one, which is capable of being determined on its merits by the prescribed officer or the service authorities before any matter is brought before the Employment Tribunal.
- I agree with Mr Serr, counsel for the Respondent, that the purpose of the statutory scheme is to ensure that the complaint of racial discrimination by the soldier is in the first instance determined by a body deemed by the legislature to be the appropriate body to resolve such disputes with the Employment Tribunal being the body dealing with this matter at the next stage. There are three further factors which are consistent with this approach, if not supportive of it.
- First, the need for a serviceman to make a complaint to the prescribed officer before lodging an application before the Employment Tribunal explains why the usual period for bringing proceedings for issues of race relations is not the usual period of three months beginning when the act complained of was done. Instead, in the light of the requirements under the service complaints procedure, service personnel are afforded an extra three months in which to lodge Employment Tribunal proceedings (see RRA s68(1)(b) now enacted in s123(2) Equality Act 2010).
- Second, the wording of regulation 14 of the 2007 Regulations (which I set out at paragraph 14) makes it clear that if the prescribed officer decides the complainant has made their service complaint outside the specified time period (but subject to the power to extend where "it is just and equitable to do so"), the prescribed officer "shall not consider the service complaint" this wording is significant because it repeats the language of s111(2) of the ERA and its predecessors. It is the use of this precise terminology in that provision in the words of Elias LJ in Radakovits v Abbey National PLC  IRLR 307 ".. what makes these issues jurisdictional rather than mere limitation issues" ().
- Third, if the mere presentation of a written complaint, however late, would be sufficient to fulfil the requirements of section 75(9) of the RRA, this would turn the procedure into a sterile piece of bureaucracy. A member of the armed forces could circumvent the statutory regime by deliberately lodging a complaint he knew would be rejected and then bring a claim before the Employment Tribunal. So the position without considering the Directive is that a claim can be brought in the Employment Tribunal under the RRA but only if a prior service complaint had been made to the prescribed officer which was not made outside the time periods in the Regulations.
- The Appellant attaches great importance to Article 7 of the Directive which states that:-
"1. Member States shall ensure that judicial and/or administrative procedures including where they deem it appropriate conciliation procedures, the enforcement of obligations under this Directive are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them, even after the relationship in which the discrimination is alleged to have occurred has ended.
2. Member States shall ensure that associations, organisations or other legal entities, which have, in accordance with the criteria laid down by their national law, a legitimate interest in ensuring the provisions of this directive are complied with, may engage either on behalf or in support of a complainant with his or her approval, in any judicial and/or administrative procedures provided for the enforcement of obligations under this Directive.
3. Paragraphs 1 and 2 are without prejudice to national rules relating to time limits for bringing actions as regards the principle of equality of treatment."
- Article 189 of the EC Treaty provides that a Directive issued under it shall be binding on the Member States "but shall leave to the national authorities the choice of form and methods". So a Directive may leave it to the Member States to decide for themselves how to implement a Directive. More specifically Mummery LJ explained the correct approach of national courts to Directives in the Ministry of Defence v Wallis and Grocott  EWCA Civ 231 in this way:-
"40. It is the function of the national courts to interpret the statutory provisions of domestic law, so far as it is possible to do so, to be compatible with the Directive. …If a compatible construction is not possible then effect must be given to the directly effective superior norms of the Directive. Domestic courts are required to disapply incompatible provisions of domestic law to the extent necessary to give effect to the directly enforceable rights derived from the Directive or other EU measure."
- The issue in this case is whether the Directive has the effect of permitting claims for racial discrimination to be brought in the Employment Tribunal, not withstanding that there has been a "service complaint" adjudged by the military authorities to be too late to be admissible.
- The English courts have been content to accept that the Directive does not preclude measures which specify a procedure which must be pursued before a claim can be brought in the Employment Tribunal, especially where such requirement does not act as an absolute bar to bringing their claims. Indeed in Riley v. First Choice Homes Oldham Ltd (UKEAT/0051-08), this Appeal Tribunal upheld a decision of an Employment Tribunal that an employee who had failed to comply with the statutory grievance procedure under the Employment Act 2002 had the consequence that the Employment Tribunal had no jurisdiction to consider his equal pay claim. Elias J (as he then was) rejected a submission that European Law required a particular statutory interpretation of the procedure that would allow the claim to proceed. He explained at paragraph 33:-
"There is nothing intrinsically inconsistent with EU law to have a requirement that a grievance issue should be raised before claims could be made. Such a requirement does not act as an absolute barrier to employees pursuing their claims or render remedies ineffective, or anything of that nature. Moreover, it is not suggested that EU law in any way affects the construction that would naturally be given to the relevant statutory provisions. On this point the issue is solely a matter of domestic law and it is a simple question of construction."
- This case was not dealing with the Directive relied on by Mr Powell but there seems to be no reason why the same principle should not be applicable to the Directive. In both cases, a pre-requisite to bringing a claim in the Employment Tribunal whether by a grievance procedure (as in the Riley case) or by "a service complaint" (as in the present case) does not infringe rights under the Directive where it is still possible for a valid complaint subsequently to be brought in the Employment Tribunal.
- In any event the law of this country does (in the words of paragraph 2 of the Directive) provide "judicial and/or administrative procedures.. are available to all persons who considers themselves wronged by failure to apply the principle of equal treatment to them..". The critical factor is that any decision by the military authorities to reject for any reason a complaint made by a serviceman on the basis that it does not meet the requirements of a "service complaint" can be the subject of an application for judicial review (see for example Crompton v United Kingdom  ECHR 42509/05 ). I should add that no attempt has been made to challenge by judicial review or otherwise the decision of the service authorities that the complaint purporting to be a "service complaint" and made by the Claimant's solicitors was made out of time.
- In reaching that conclusion, I have not overlooked the contention of Mr Powell counsel for the Claimant that judicial review was an inadequate procedure because of its slowness, its cost and its inadequacy. I am bound to say that having sat in the Administrative Court for many years, I do not recognise any of these criticisms, which fail to recognise that the Claimant, who lives in the Midlands, would be able to bring proceedings at Birmingham Administrative Court where hearing dates are obtained very speedily and, where as in London, if there is any urgency the claim would be expedited.
- Furthermore legal assistance is available in the Administrative Court while it is not available in the Employment Tribunal. So I am unable to understand any reason why judicial review of a decision made by the military authorities to reject a complaint made by a soldier as not being a valid "service complaint" cannot be speedily effectively challenged. It therefore becomes unnecessary to consider further the reliance placed by the Respondent on the facts the very recent decision of the Court of Appeal in Ministry of Defence v Wallis and Grocott  EWCA Civ 231.
- Mr. Powell also contends first that the Employment Tribunal had jurisdiction, on its interpretation of section 75 RRA, to determine whether the service complaint had been made "in time" and second that in this context "in time " encompassed both the question of (a) determining the date of the submission of the service complaint and (b) determining the discretionary extension of time. I am unable to accept that submission because the Employment Tribunal is not the place to challenge this or any other decision of the service authorities. The Employment Tribunal is a creature of statute and it does not have jurisdiction to determine appeals against decisions of military authorities whether in relation to extending time or in any other respect. The proper way to challenge a decision of the military authorities is by way of judicial review as I have explained in paragraphs 37 to 39 above. (I should add that when I circulated a draft of this judgment to counsel for typing corrections, I had not dealt with this point and counsel for Claimant asked me to deal with this point and that is why I have done so.)
- Although I have not dealt with all the submissions of Mr Powell, I have not overlooked them but I cannot accept them for the reasons set out above, which in my view show how the relevant provisions should be construed.
- Having had the benefit of much more detailed submissions than were made to the Employment Judge, I have come to the conclusion that his decision was correct and that the Employment Tribunal had no jurisdiction to consider the claim. Thus this appeal is dismissed.
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