D Davy v Ministry of Defence: 1400456/2021
JUDGMENT
The claim is dismissed.REASONS
[1]A full extempore decision was given, and this is a brief summary.[2]The Claimant was a serviceman. He was in the Army, then in 2015 transferred to the Navy. He says that he was not given proper credit for his long Army service in the terms of his Navy service.[3]Before service personnel can bring a claim for unlawful discrimination they must file a service complaint and bring the action within six months of so doing.[4]The Claimant did file a service complaint, in 2017. He said that his terms were was unfair and he named people who he said had been treated better than he was. He did not say that this was by reason of race and did not tick the discrimination box in the form, nor fill in any of the boxes which follow where details of discrimination should be given. Case Number 1400456/2021 2[5]He says that the MoD should have appreciated that he is black and the comparators were white and so treated it as a discrimination claim. He says this meets the requirement for a service complaint.[6]The complaint was dismissed, the MoD saying that the others should not have had the terms they got, but there was nothing to be done as they had now both left service.[7]Mr Davy appealed, and mentioned that it was possible there was unconscious bias at work, as perusal of the three personnel records would show the ethnicity of all three individuals.[8]The person taking the appeal declined to deal with this, saying it would need a fresh complaint. Mr Davy did not make a fresh complaint.[9]Appeal to the Ombudsman was unsuccessful and this claim was brought.[10]Mr Davy says that the public sector equality duty meant the MoD should have been proactive. This duty is not so large that the Mod was obliged to look at the complaint and ascertain the ethnicity of the individuals and ask if there was a race discrimination claim. If that was the case, they would also have to ask about the sexuality of the three, and their religions, and about other protected characteristics.[11]It follows that there was no service complaint about race discrimination, and the claim must be dismissed for want of jurisdiction.[12]If Mr Davey was correct about the service complaint there is another issue. He had to bring the claim within six months of the incident about which he complained in the service complaint. As the service complaint was in 2017 and the claim filed in 2021 this time limit is greatly exceeded. While the time can be extended if it is just and equitable to do so, this time is so lengthy that the claim would have had to be struck out as being brought out of time. While this may be a continuing disadvantage, and so not out of time for a person who is not in the military, that does not help Mr Davey as time for him is measured from the date of the service complaint, which was in 2017.[13]If there had been no such difficulty for Mr Davy I would not have struck out the claim as having no reasonable prospect of success, as the MoD accepted that Mr Davy was treated differently (and less favourably) that the comparators. It was, the MoD says, an error that they were treated so, and the way Mr Davy was handled was correct. Whether that is so, or not, would be a matter for evidence.[14]If I had not struck out the claim, I would have made a deposit order. The difference in treatment is accepted, and the difference in ethnicity also accepted. However there were two recommendations in support of Mr Davy’s service complaint (his situation was unique and he did not fit easily into the structure of the rules, and the MoD had made errors in the way it handled his case). It is inherently unlikely that the independent people deciding the service complaint, the person taking the Case Number 1400456/2021 3 appeal, and the person at the Ombudsman rejecting the complaint were all motivated by unconscious bias against Mr Davy.[15]I acknowledge the depth of feeling Mr Davy has about this issue. Employment Judge Housego Date 07 September 2022 Judgment sent to the parties: 14 September 2022 THE TRIBUNAL OFFICE Note Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision. Case number 1400456/2021 1 EMPLOYMENT TRIBUNALS Claimant: Donovan Davy Respondent: Ministry of Defence Heard at: Southampton On: 07 September 2022 Before: Employment Judge Housego Representation Claimant: In person Respondent: Sophie Garner, of Counsel[16]On 31 August 2017 the Claimant’s line manager4 partially supported the Claimant’s Service Complaint. That was on the different bases that the Army and the Royal Navy approached the process of becoming a candidate for a commission. He would have been better off had he remained in the Army and been commissioned there and then transferred, for (usually) he would then have had the benefit of the 12 years reckonable service. He did not get that benefit when commissioned into the Royal Navy. Had he transferred into the Royal Navy with a commission he would (it was suggested) have had the benefit of that reckonable service. His circumstances were said to be unique, as he not only transferred between services but also transferred out of the ranks and into an officer role at the same time.[17]The Service Complaint was not upheld. There was only one route into the role the Claimant took in the Royal Navy since 1999 that was the Direct Entry route5 which had been offered to the Claimant, and which he had accepted6. The outcome letter apologised for the errors made in effecting the transfer. A first offer letter had been incorrect and had been withdrawn and another issued, which the Claimant had accepted.[18]The Claimant appealed. He named two comparators, Lt Tagg (by then retired) and Lt Cdr Wood. In acknowledging receipt of that appeal7 the Navy Service Complaints Secretary stated8 that matters that did not form part of the Service Complaint when the Admissibility Decision was made could not be added subsequently “I refer you to paragraph 11 of your Application where I note that you suggest there may have been “…unconscious bias and discrimination” which so far as I can tell is not an allegation that featured in your Annex F dated 5 Dec 2017 or at any time prior to Cdr Dreelan’s admissibility decision.”[19]The Claimant did not dispute this. Nor did he seek to raise a second Service Complaint of race discrimination.[20]That appeal was decided by a letter dated 21 June 2019. The decision was upheld. The reasons contain a detailed analysis of the situation the Claimant was in, and the rules applicable9. It is not necessary to set out the detail of this reasoning. It 4 Cdr J Churcher, Base Executive Officer 5 Page 46 of the bundle of documents, Cdr A Witt email 18 May 2018 to Legal Casework Team 6 Claimant’s Service Complaint at page 41 7 Page 66 8 29 January 2019, page 65 et seq 9 76 et seq Case number 1400456/2021 4 accepts that there was “undoubtedly been inconsistency in the handling of then Sgt Davy’s application to join the RN as a commissioned EHO, but that can be attributed at least in part to the comparatively unusual circumstances of the case.”[21]On 01 August 2019 the Claimant referred the matter to the Service Complaints Ombudsman for the Armed Forces (SCOAF) asking for an investigation into the merits of his complaint and saying that the way it had been handled was maladministration. It does not raise race discrimination but challenges the outcome of the appeal.[22]SCOAF decided that there was only one route into the Royal Navy for this role, and that was as a Direct Entrant, and the pay he had been receiving had been correct. It found maladministration in the handling of the Service Complaint which had suffered undue delay, during which the Claimant was not properly updated. SCOAF also said that the Claimant was due an apology for the confusion which arose in his recruitment into the Service.[23]The evidence of Mr Gondelle was that some years before Lt Tagg had indeed been treated better than the Claimant, but that this was an error, and he should have been treated the same way as the Claimant. He also said that the other comparator who transferred into the Royal Navy had a commission before transferring into the Royal Navy, not to an Environmental Health role, and so fell under a different rule. I accept that evidence as correct. None of the decision makers have felt that the Claimant was treated incorrectly, while also having some sympathy for his situation.[24]The Claimant’s claim form states in box 8.2 that: “I have exhausted the internal dispute process and now believe that my different treatment amounts to discrimination.” It is implicit in this statement that at the time he raised his Service Complaint he did not think that race discrimination might be a motivational factor.[25]There was no Service Complaint about race discrimination. When he filed his Service Complaint the Claimant did not think he had suffered race discrimination. That cannot be read into the document by implication. Box 4 where such a claim would be set out was left blank. The appeal referred to it being a possibility that there was race discrimination, but the word used was “may” so that even then it was not put as an allegation. Even if that is taken as an allegation of race discrimination the Claimant was told that he could not add in extra allegations to his appeal. The appeal was only about the decision on the matters raised in the 2017 Service Complaint, and that did not include race discrimination. The letter acknowledging the appeal is clear on this point. There was no second Service Complaint alleging race discrimination.[26]Therefore, this claim must be dismissed for want of jurisdiction, as a Service Complaint of race discrimination is a requirement of bringing a claim of race discrimination to this Tribunal.[27]The second reason for dismissing the claim is that it is a long way out of time. The transfer was in 2015 and the claim was not until 2021. The Claimant says that there was continuous detriment in receiving less pay than he should have received. I find Case number 1400456/2021 5 the act said to be race discrimination was the terms he was offered to join the Royal Navy as a Sub-Lieutenant. The Claimant did not say that he found out about his comparators within three months of lodging his claim on 21 January 2021. It would not be just and equitable to extend time given such a long delay.[28]I observe also that the claim does not have any great merit. Several people unconnected to the Claimant or to one another have examined his situation. While some express sympathy with his situation, which plainly was unusual (leaving the Army a Sergeant and joining the Royal Navy with a commission, into a role which from 1999 was filled only by Direct Graduate Entrants, where people who transfer into the Royal Navy from a commissioned rank usually get credit for reckonable service, he being someone in line for promotion in the Army) all conclude that the terms he was on were the right terms. I have covered the evidence of Mr Gondelle about the comparators. There is nothing to suggest that the conclusions of these disparate decision makers were influenced in any way by considerations of race.[29]The Claimant’s sense of injustice is not assisted by the way his complaints have been handled, nor the way his transfer into the Royal Navy was handled. That is not relevant to the issue I have to decide.[30]I am not critical of the person deciding that the complaint was admissible when the box about discrimination was not ticked yes or no, because if the Claimant had mistakenly omitted to tick yes he also left blank the subsequent boxes where he should have set out the race discrimination claim.[31]The Claimant’s submitted that the Royal Navy should have looked at his human resources file, noted that he was black from his ethnic diversity monitoring form and taken the complaint as one of race discrimination as well. However the form, Annex F, specifically does ask that very question.[32]It would, in any event, be impossible for this to be done. The Royal Navy would, if this was an obligation, have to ask whether every complainant was gay, disabled, what religion the complainant had, or none, and whether it was thought to be the reason for the treatment complained of. This is far beyond what is reasonable. The purpose of the Service Complaint form is to enable service people to put forward complaints, and the form expressly asks a complainant if there is a discrimination claim. If a complainant does not fill in the boxes asking what such a claim is that claimant cannot complain that the issue was not investigated. There can be no obligation to investigate a claim which has not been made. Case number 1400456/2021 6