Service Complaints – Legal Update: Edwards v. Ministry of Defence [2024] EAT 18 – Summary and Key Lessons

Sidley Austin LLP recently represented a serving member of the British Army (Complainant) in a long-running Employment Tribunal case (Edwards - v - Ministry of Defence [2024] EAT 18) that concerned the procedure for service complaints made under the British Armed Forces (Service Complaints) Regulations 2015. This note explains the background to the case and provides practical guidance for members of the armed forces who may have experienced issues such as discrimination during their service and wish to pursue a service complaint and/or Tribunal claim.

Background

Employees in the Armed Forces must submit a service complaint before filing an employment claim with the Employment Tribunal (Tribunal). The Complainant filed a service complaint in 2019 and, unsatisfied with the response that she received, lodged a claim in the Tribunal against the Ministry of Defence on grounds of race and disability discrimination.

The Complainant then applied to the Tribunal for permission to amend her initial claim to add claims for sex discrimination, harassment related to sex, and victimisation, and she withdrew the disability discrimination claim. The Tribunal rejected this request, stating that the service complaint did not address these new matters and therefore they could not be raised before the Tribunal. The Complainant was granted permission to appeal to the Employment Appeal Tribunal (EAT) in respect of the decision on her proposed amendments.

The EAT Decision

The EAT held that for the Tribunal to have jurisdiction over a claim brought by service personnel in respect of discrimination, harassment, or victimisation, the substance of a service complaint must relate to allegations of discrimination, harassment, or victimisation. The EAT found that the Tribunal had correctly considered that the substance of the allegations in a service complaint were key but that this did not require particular technical or legalistic words to have been used in the service complaint itself.

On the facts, the EAT found that the Complainant’s service complaint did not explicitly refer to discrimination, harassment, or victimisation on the grounds of race or sex. Further, the substance of the complaints did not appear to infer discrimination, harassment, or victimisation, either. Rather, the Complainant had put forward or implied other reasons for her mistreatment and, for example, had challenged the general failings in her care when injured as negligent.

Practical Advice for Individuals

• The Tribunal will not have jurisdiction to determine a complaint related to an act done to you while you were serving as a member of the armed forces unless you make a service complaint about the matter.
• The time limit within which service complaints must be brought is very short (usually three months from the relevant event’s occurring), so as a first step it is important to work out the deadline with which you must comply.
• In your service complaint, you must state how you have been wronged. If this wrong involved discrimination, harassment, bullying, or dishonest or biased behaviour, you must make this very clear and state whether it was because of your sex, race, colour, or similar characteristics.
• Although you do not need to actually use the words “discrimination,” “harassment,” or “victimisation” if you believe that you have been a victim of discrimination, harassment, or victimisation it is worth stating as much up front or using language that very obviously means the same thing.
• For example, a sex discrimination allegation would likely to be clear from a service complaint that contains a comment like “no male officer would have been treated like that”; an allegation of race discrimination would likely emerge where the complainant said they believed “it happened because I am Black.”
• If for example the complaint was about unfair or unlawful promotion or course attendance decisions, words like “the RAF chain of command did not want white men in this role” are likely sufficient.
• The service complaint must be detailed enough for the EAT to have sufficient information to form a view about the conduct. As such, it may be helpful to keep a record of situations and conversations in which you have experienced discrimination and the like and make a note of why you believe it fell into one of those categories.
• There must be a clear link between the acts to be evaluated in the EAT and the events described in the service complaint, so it is important to be consistent.
• You must state how you have been wronged in relation to your service in the armed forces, but it is also important to say why you believe that you were wronged (i.e., state what you think motivated the people who wronged you).
• Keep in mind that, for example, an allegation of sex discrimination cannot be inferred simply because a complaint is made by a woman.

Service Complaint DOs and DON’Ts

DO

1. Focus on facts.
2. Indicate specifically what your complaint is about (e.g., if relevant, discrimination, harassment, victimisation, bullying), and say why you believe the matter complained of is wrong and what you think motivated those who wronged you.
3. Be specific.
4. You can use your own words. It is not necessary to use technical or “legal” language. It is much more important to clearly set out what happened in an easily understandable manner and to use words like “this happened to me because I am ….”

DON’T

1. Simply copy and paste the law into your service complaint.
2. Focus only on how your experience makes you feel.
3. Feel pressured by others (including your chain of command or your assisting officer) to change or “tone down” what you write in your service complaint. Describe the events as you remember them.
4. Exaggerate. Although it can be very frustrating to feel like you are being treated unfairly, exaggerations may undermine your credibility before the Tribunal, harming your case.

From time to time solicitors in our London office assist service personnel with issues such as making service complaints or navigating the Armed Forces Compensation Scheme on a pro bono basis (i.e., without charge). We have limited resources available and may not be able to help in every case. Our London pro bono contacts are Louise McCarthy and Matthew Shankland.