XA v The Royal Navy - Ministry of Defence: 1400773/2018
EMPLOYMENT TRIBUNALS
Case No 1400773/2018
Between
XAClaimantThe Royal Navy - Ministry of DefenceRespondent
Before
Employment Judge MidgleyIn person for claimantMr John-Paul Waite (instructed by Counsel) for respondentDate 21 September 2022
JUDGMENT
[1]Paragraph 18(2) of Schedule 9 of the Equality Act 2010 is incompatible with Articles 1 and 2(a) of the Framework Directive 2000/78 (“The Framework Directive”) and Article 21 of the Charter of Fundamental Rights of the European Union (“The Charter”).[2]It is not possible to interpret Paragraph 18(2) in a way that could be compatible with the Framework Directive or the Charter. Paragraph 18 must therefore be dis-applied by the Tribunal.[3]The Respondent’s application for the claims to be dismissed pursuant to Rule 37 is dismissed. The claim does not have no reasonable prospect of success as a consequence of Paragraph 18(2) of Schedule 9 of the Equality Act 2010.
REASONS
[1]This is my decision following two Preliminary Hearings to determine whether the claimant’s claims of indirect discrimination should be struck out pursuant to Rule 37 on the grounds that Paragraph 18(2) of Schedule 9 of the Equality Act 2010 provides a complete defence to the claim, irrespective of its factual merits, because it excludes any claim of indirect discrimination on the grounds of sexual orientation in respect of access to a benefit, facility or service provided to the exclusion of all others to married person or civil partners.
The Claim
[2]By a claim form dated 1 March 2018 the claimant, who is a serving member of the Royal Navy and is gay, brought claims of sexual orientation discrimination contrary to section 19 of the Equality Act 2010 against the respondent.[3]The claims arose out of the claimant’s assignment to the Ministry of Defence premises at Abbey Wood in July 2017. As no military accommodation was available at that site, the claimant was eligible for the provision of accommodation by the respondent, as detailed in the respondent’s policy ‘JSP 446 Tri-Service Accommodation Regulations’ (‘the Regulations’).[4]The Regulations provide for two types of accommodation in those circumstances: Substitute Service Single Accommodation (“SSSA”) and Substitute Service Family Accommodation (“SSFA”). SSFA permits those in marriages or civil partnerships who are living with their spouse or civil partner, a choice of two properties. SSSA however offers a single choice of accommodation to those who are single, or married or in a civil partnership but not living with their spouse or civil partner.[5]The claimant claims that the respondent’s application of those Regulations to him constituted indirect discrimination contrary to section 19 of the Equality Act 2010. In particular, the claimant complains that the decision to reduce the number of choices of property for Substitute Service Single Accommodation (“SSSA”) from two to one, whilst maintaining two choices for Substitute Service Family Accommodation (“SSFA”) created a Provision, Criterion or Practice which placed members of the LGBTQIA community at a substantial disadvantage, since (when compared to members of the heterosexual community) a greater proportion of that community are not married or in civil partnerships, and those that are, are unlikely to be live with their spouse or civil partner in service accommodation, and thus will be ineligible for the greater choice of substitute accommodation available through the SSFA. He argues that it placed him at a disadvantage because he was not offered the choice of accommodation. He argued that there was no objective justification for such indirect discrimination. The procedural history[6]Simultaneous with his presentation of the claim to the Tribunal, the claimant sought resolution of the issues through the respondent’s Service Complaints system.[7]In consequence, on the 6 March 2018, Acting Regional Employment Judge Harper invited the Respondent’s comments on a proposed stay of the proceedings and directed that the respondent should not enter a response at that stage.[8]On 26 March 2018, the respondent confirmed its agreement to a six-month stay of the proceedings until the 30 September 2018. The claimant consented to that stay on 26 March 2018. Consequently, on 29 March 2018 the proceedings were stayed until 30 September 2018.[9]The respondent subsequently sought a further stay of six months to enable its determination of the Service Compliant to be completed. The claimant objected to that application but agreed to a stay of three months. On 29 October 2018 Employment Judge Harper extended the stay for 3 months until 3 January 2019.[10]On 18 December 2018 the respondent applied for an extension of the stay until 3 April 2019. The claimant consented to that extension in circumstances where the Service Complaints Ombudsman, acting in accordance with her powers under the Armed Forces (Service Complaints and Financial Assistance) Act 2015, had found that there was undue delay in the conclusion of the Service Complaint and that the claimant had suffered injustice as a result.[11]The stay was extended to 12 April 2019, and the parties were directed to update the Tribunal as to progress with the Service Complaint by 12 April 2019.[12]On the 11 February 2019 the respondent applied to lift the stay and sought an order that the claim be struck out in its entirety under rule 37 on the grounds that it had no reasonable prospect of success on a ‘preliminary issue of law’ because paragraph 18(2) of Schedule 9 of the Equality Act 2010 explicitly excluded any claim of indirect discrimination in respect of a benefit provided to married/civil partners personnel due to their marital status.[13]On 24 February 2019, the claimant set out the grounds on which he resisted that application. In particular he relied upon the phrase “to the exclusion of all others within paragraph 18(2)”, arguing that the respondent could not rely on paragraph 18(2) because other categories of service personnel, for example those who are not married but have dependent children receive the benefit in question.[14]On 10 April 2019 the respondent applied for a preliminary hearing in person to determine its claim for strike out on the ground of jurisdiction, on the basis that the claims were caught by the statutory exclusion set out within Schedule 9. It identified the issue to be determined as follows, “Taking the facts set out in the claim form at the highest, does paragraph 18(2) of Schedule 9 to the Equality Act 2010 mean that the claim must fail?”[15]In addition, the respondent sought a further stay until 30th June 2019 to allow the Service Complaint and any appeal to conclude. The claimant agreed to a further stay for three months.[16]On 16 April 2019 Employment Judge Livesey extended the stay until 30 June 2019. That stay was extended by agreement until 15 July 2019 to enable the appeal against the Service Complaint to be concluded.[17]The Decision Body and the Appeal Body concluded that there had been a breach of the statutory provisions and that the respondent had failed to conduct equality analysis in relation to the Regulations. However, the Appeal Body did not conclude that indirect discrimination had taken place because of the exemption in Schedule 9 Paragraph 18(2).[18]By email dated 15 July 2019 the claimant raised the argument that Paragraph 18(2) (“The Exemption”) was incompatible with the EU Framework Directive (Article 2), incompatible with the European Convention on Human Rights (Article 14, engaged by Article 8) and incompatible with the EU Charter of Fundamental Rights (Article 21); and it was therefore necessary for the Tribunal to disapply the Exemption because of that incompatibility.[19]On 31 July 2019, the claimant applied for an anonymity order pursuant to rule 50 of the Employment Tribunal Rules. The respondent resisted that application.[20]In consequence the matter was listed 9 October 2019 for a one-day preliminary hearing to determine the respondent’s application, having regard to the issues identified by the claimant, and the claimant’s Rule 50 application. The preliminary Hearing on the 9 October 2019[21]On the 9 October 2019, for reasons that were given orally to the parties at the time, I granted the claimant’s application for a Restricted Reporting Order. In addition, I heard argument from each of the parties in relation to the respondent’s application.[22]There was, however, insufficient time to hear the respondent’s oral submissions addressing the claimant’s arguments relating to the compatibility of the Exemption within Equality Act 2010 with the Framework Directive, the ECHR or the Charter of Fundamental Rights, or any reply from the claimant. Those arguments were not addressed in the skeleton argument that the respondent had prepared for the Preliminary Hearing.[23]Consequently, I adjourned the hearing to 19 December 2019 and directed that further skeleton arguments relating to that issue should be filed and exchanged.[24]Regrettably on 17 December 2019, the respondent’s counsel was admitted to A&E as an inpatient following an accident and was unable to attend the listed hearing. The hearing was therefore adjourned to 24 February 2020. In addition, I directed the parties by 13 December 2019 to address in further written submissions whether: “the provision of accommodation by the respondent consequent to the PStat amounted to “pay” within the meaning of Article 157(2) EC on the ground that it was “any consideration, whether in cash or in-kind, which the worker receives directly or indirectly, in respect of his employment from his employer.”[25]The respondent’s counsel had not sufficiently recovered from his injuries in order to comply with that direction, seeking an extension until 27 January 2020. The matter was therefore relisted for the 24 February 2020. The hearing on the 24 February 2020.[26]The parties provided further submissions on the 27th and 28th January 2020 respectively. In consequence, at the outset of the hearing I raised the potential impact of the lines authorities and the decisions of the CJEU epitomized by Cresco Investigation GMBH v Achatzi; Kukukdeveci v Sweden and R (Chester) v Secretary of State for Foreign and Commonwealth Affairs with the parties.[27]The respondent’s counsel was not able to address the impact or effect of those authorities in relation to its application, and both parties sought permission to file further submissions addressing that line of authority. Accordingly, with some frustration, I permitted the parties to serve further submissions sequentially on 9 March 2020 (respondent) and 17 March 2020 (claimant).[28]On 2 March 2020, the respondent sought permission to vary the orders so that it could take instructions from the Joint Services Committee and the Government Equality Office. The claimant objected to that proposal, but Employment Judge Harper MBE granted the extension in the terms requested.[29]The respondent submitted a further 46 paragraph skeleton argument with 133 pages of authorities on 30 March 2020. The claimant submitted his further submissions running to 17 pages on 9 April 2020.[30]Unfortunately, the Covid-19 pandemic then intervened and the file was not referred to me but to other judges in the Bristol Employment Tribunal and matters were delayed as directions were made in relation to the production of an agreed schedule of facts relating to the Claimant’s application to amend the claims (which is addressed in a separate case management order). Consequently, on 20 May 2020 I sought clarity as to whether the parties would agree, in the context of the pandemic, to my determining the preliminary issue of strike out on the basis of the written submissions.[31]Regrettably, further confusion affected the progress of the file as a misunderstanding occurred as to whether the respondent’s request for further time to confirm whether it consented to a decision on the papers was incorrectly understood to relate to the primary issue of strike out, rather than the issue of amendment, to which it in fact related. In consequence, no action was taken on the file until 26 June 2020 (when the respondent had indicated that it would be in a position to indicate whether a hearing was required).[32]Due to the impact of the pandemic, the file was not referred back to me until 28 August 2020; in the event I did not see the file until after my return from annual leave at the beginning of September. I apologise to the parties for the further delay between September and the date of this judgment, when I have sought to find time to address the substantive issue and the complex law involved.[33]It seemed to me, in the context of the case, that it was of little or no benefit to the parties to limit the Judgment solely to the issue of whether the claim had no reasonable prospect of success on the grounds that paragraph 18(2) was a complete defence to the claim, without providing a definitive Judgment addressing whether it is compatible with the Equal Treatment Directive and the Charter of Fundamental Rights of the European Union. The advantage of the latter course is that it enables the parties to appeal the legal issue which is at the heart of the claim should they wish, without having to wait until after the final hearing to do so.[34]Nevertheless, the protracted history of these proceedings indicates that with the benefit of hindsight the respondent’s better course may have been to wait to the final hearing to argue the factual issue of whether there was indirect discrimination rather and the pure legal point simultaneously. However, it is very easy to be wise after the event.
The Issues
[35]The issues for me at this preliminary hearing are as follows: 35.1. Should the claim be struck out either on the ground that it has no reasonable prospect of success because of the exemption in Paragraph 18(2) of Schedule 9 EQA 2010 (“the Exemption”)? In relation to which the following issues arise:- 35.1.1. Is the Exemption compatible with the prohibition of discrimination under Articles 1, 2(1) and 3(1)(c) of Council Directive 2000/78/EC insofar as it precludes the claimant’s claim for sexual orientation discrimination in respect of the provision of accommodation to service personnel in accordance with P Stat 2? 35.1.2. If not, should paragraph 18 be disapplied in the present proceedings? The Law National Law
The Law
[36]The national legislation is contained in the Equality Act 2010, and in particular in sections 4 (identifying sexual orientation as a protected characteristic) and section 19 which prohibits indirect discrimination, and which provides in so far as is relevant:(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if- a) A applies, or would apply, it to persons with whom B does not share the characteristic, b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, c) it puts, would put, B at that disadvantage, and d) A cannot show it to be a proportionate means of achieving a legitimate aim.[37]Schedule 9 EQA 2010 contains the Exemption at paragraph 18(2) which provides as follows: Benefits dependent on marital status, etc (2) a person does not contravene this Part of this Act, so far as relating to sexual orientation, by providing married persons and civil partners (to the exclusion of all other persons) with access to a benefit, facility or service.[38]The provision does not oust the Tribunal’s jurisdiction, rather it provides a defence to an otherwise valid claim under the Equality Act. Necessarily, it will require determination of the evidence as to whether access to the benefit, facility or service is ‘to the exclusion of all other persons,’ and may involve mixed questions of fact and law as to what is meant by ‘access to’ in the context of this case. European Law[39]The national law was intended to ensure that the United Kingdom complied with its obligations arising from its membership of the European Union as set out below.[40]From 1 January 1973, the date on which the European Communities Act 1972 (“The 1972 Act”) came into force in the UK, until 31 January 2020, the date on which the European Union Withdrawal Act 1998 (“The Withdrawal Act”) came into force, the UK ceded its sovereignty over certain areas, including employment and discrimination law, to the EU.[41]It was trite law (until 31 January 2020) that EU law had supremacy over domestic law in areas where the EU had legislative competence under the Treaties (see Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1, ECJ). That supremacy was underlined by section 3(2) of the 1972 Act, which required Courts and Tribunals to take judicial notice of the European Treaties, European legislation and decisions of the Court of Justice of the European Union (“CJUE”) in deciding cases before them.[42]The 1972 Act was repealed by the Withdrawal Act. However, the supremacy of EU law and the jurisdiction of the CJEU during the transition period is preserved by section 1A of the Withdrawal Act. The transition period ends on 31 December 2020 (“IP Implementation Day” defined in s.39 of the European Union (Withdrawal Agreement) Act 2020 (“the 2020 Act”)).[43]The obligation for the meaning of any retained EU law (post transition) to be decided “in accordance with any retained case law of the CJEU and domestic courts and any retained general principle of EU law” is provided for in section 6 (particularly 6(3) and (7)) of the Withdrawal Act.[44]It follows that for the purpose of this claim the effect of the existing decisions of the CJEU and the impact of the Treaties, Directives and other EU jurisprudence remains as described below. The Treaties[45]In so far as is relevant, the Treaties with which the Tribunal is concerned in the present instance include: 45.1. The Treaty establishing the European Community (“TEC”), which was incorporated into the Treaty on the Functioning of the European Union (“TFEU”). 45.2. The Treaty on European Union (“TEU”) 45.3. The Treaty on the Functioning of the European Union, which was signed on 13 December 2007 and entered into force on in the UK on 1 December 2009. Article 10 of the TFEU identifies that “the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability age or sexual orientation.”[46]Article 19(1) of TFEU, which incorporated Article 13(1) TEC, provides for the general principle of non-discrimination: “Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it on the Community, the Council … may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.”[47]The following Directives were established under the enabling Articles of the Treaties, such as Article 19(1) above: 47.1. The EU Equal Treatment Framework Directive (number 2000/78) (“the Framework Directive”), which sets out a general framework for eliminating employment or occupational inequalities based on age, disability, religion or belief, and of relevance here, sexual orientation. 47.2. The Recast EU Equal Treatment Directive (no.2006/54) (“the Recast Directive”), which relates to ‘the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation’. It covers sex, pregnancy and maternity, marriage and civil partnership, and gender reassignment. The Charter of Fundamental Rights of the European Union[48]The TFEU introduced the Charter of Fundamental Rights of the European Union into European primary law (“The Charter”). The Charter was given the same legal values as the Treaties from 7 December 2007, following the Treaty of Lisbon, with the effect that it acquired the definitive status of primary law within the legal order of the European Union, in accordance with Article 6(1) EU (see Kucukdeveci v Swedex GmbH & Co KG (KC-555/07) [2010] All ER (EC) 867 paragraph 22; 27).[49]Article 21 of the Charter provides as follows: “Non-discrimination 1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political any other opinion, membership of any national minority, property, birth, disability, age or sexual orientation shall be prohibited. (Emphasis added)[50]Article 21 has direct effect with the consequence that where national legislation conflicts with the Charter rights, a national court must set aside the discriminatory provision of national law to guarantee individuals the legal protection afforded under Article 21 and guarantee the full effect of that Article (see Cresco Investigation GmbH v Achatzi C-193/17 [2019] IRLR 380 at paragraphs 77-78 and 80).[51]That means that, by virtue of the commitment of fundamental rights laid down in Article 51(1) of the Charter, legislative acts adopted by the European Union institutions in this sphere must be assessed by reference to that provision and the Member States are bound by it in so far as they implement European Union Law (see Kucukdeveci at paragraphs 45 - 48). The Framework Directive[52]The Framework Directive was the enabling provision by which the Fundamental Right of non-discrimination was extended beyond equal treatment on the basis of sex, nationality and race to include age, disability, religion and belief and sexual orientation.[53]The deadline for transposing the Framework Directive into domestic law was the 2 December 2003 and the UK did this initially by way of Regulations (the Employment Equality (Sexual Orientation) Regulations 2003), and subsequently in the primary legislation now incorporated into the Equality Act 2010. The relevant parts of the Framework Directive are set out above.[54]Recital (4) of the Framework Directive establishes “the right of all persons to equality before the law and protection against discrimination,” recognising that as a universal right included within the European Convention for the protection of Human Rights and Fundamental Freedoms.[55]Recital (11) identifies that discrimination based on religion or belief, disability, age or sexual orientation undermines the achievement of the objectives of the EC Treaty. Recital (12) provides that discrimination based on “sexual orientation” as regards the areas covered by the Framework Directive should be prohibited throughout the Community.[56]Recital (22) provides “This Directive is without prejudice to national laws on marital status and the benefits dependent thereon.”[57]Article 1 identifies the purpose of the Framework Directive as creating “a framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect on the Member States the principle of equal treatment.”[58]Article 2 identifies that the “‘principle of equal treatment’ shall mean that there should be no direct or indirect discrimination whatsoever on the grounds referred to in Article 1.”[59]Article 3(1)(c) provides that “Within the limits of the areas of competence conferred on the Community, this directive shall apply to all persons… In relation to… Employment and working conditions, including dismissals and pay”.[60]Article 16 provides: “Member States shall take the necessary measures to ensure that:(a) any laws, regulations and administrative provisions contrary to the principle of equal treatment are abolished;(b) any provisions contrary to the principle of equal treatment which are included in contracts or collective agreements, internal rules of undertakings or rules governing the independent occupations and professions and workers’ and employers’ organisations are, or may be, declared null and void or are amended.” The general principle of non-discrimination[61]If the context of the claim before the court falls within the legislative competence of EU law, the general principle of non-discrimination will apply (see R (Chester) v Secretary of State for Justice [2014] AC 271 per Lord Mance JSC at paragraph 61-62, Mangold v Helm (C-144/04) [2005] ECR I9991 para 75, Bartsch v Bosch und Siemens Hausgeräte (BSH) Altersfürsorge GmbH (Case C-427/06) [2008] ECR I-7245 para 25, and Kücükdeveci para 23, Römer v Freie und Hansestadt Hamburg (Case C147/08) [2011] ECR I-3591 para 60).[62]In consequence, where there is “a conflict between EU law and English Domestic law [it] must be resolved in favour of the former, and the latter must be disapplied” (see Mangold at [77]; and see the comments of Sumption JSC in Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs [2017] UKSC 62, [2018] IRLR 123 at 789E - 790A, approving Chester; Kucukdeveci at paragraphs 50 - 51; 53-54 and Romer at paragraph 61).[63]The fact that a treaty or the Framework Directive contains specific provision preserving the discretion of Member States in relation to aspects of national law (see for example Article 17 TFEU and recital 22 of the Framework Directive) does not mean that a difference in treatment under the national legislation is excluded from the scope of the Framework directive, nor that the determination of whether such difference in treatment is compatible with that directive is not subject to effective judicial review (see Cresco at para 31).[64]Where an article or recital to the Framework Directive establishes an exception to the principle prohibiting discrimination it must be interpreted strictly (see Prigge v Deutsche Lufthansa AG (C-447/09) EU:C:2011:573 at [56]). Pay[65]Article 157 EC (formerly 141 TEC) provides that “pay” means “the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer.”[66]In British Airways plc v Williams and others [2012] 1 CMLR 23, Advocate General Trstenjak noted at paragraph 69 that that definition is consistent with the standards of international employment law, its drafting history making it clear that it is based on Article 1(8) of ILO Convention C100 Equal Remuneration Convention 1951, which reads: “the term ‘remuneration’ includes the ordinary, basic or minimum wage or salary and any additional emoluments whatsoever payable directly or indirectly, whether in cash or in kind, by the employer to the worker and arising out of the worker’s employment.”[67]It makes no difference in this regard whether the payment is received under a contract of employment, by virtue of legislative provision or on a voluntary basis (see North Western Health Board v McKenna (Case C-191/03) [2006] ICR 477). The relevant criterion is the function of remuneration as consideration from the employer for work undertaken by the employee; “any other consideration” would have to mean any monetary benefit which constitutes such consideration in the broad sense of the term, not exclusively on other grounds (e.g. increased productivity, improved working conditions of employment, promotion of health) - see Williams at AG75.[68]In Williams the Advocate General noted, in reaching her conclusion that the supplements paid to airline pilots constituted pay within the meaning of Article 141 EC and therefore “normal remuneration” for the purposes the Working Time Directive, that any payment or emolument ultimately linked to a pilot’s readiness to make himself available for work for as long as the employer occurs considers it necessary, would fall into the category of pay - see para AG78.[69]In that context, the CJEU has found the following matters constitute pay for the purposes of article 141 EC: 69.1. Concessionary travel permits for use after an employee retires. (Garland v British Rail Engineering Ltd [1998] C-12/81 [1982] 1 C.M.L.R. 696) The CJEU held at [10], “The argument that the facilities are not related to a contractual obligation is immaterial. The legal nature of the facilities is not important for the purposes of the application of Article 119 provided that they are granted in respect of the employment.” (Emphasis added). 69.2. An entitlement for a partner of an employee to receive survivor pension benefits on the employee’s death (Maruko v Versorgungsanstalt der Deutschen Buhnen (C-267/06) [2008] 2 C.M.L.R. 32) 69.3. The financial assistance given to German federal public servants if they became ill. In addition, 50-80% of the health care expenses incurred by the public servant or specific family members. (Germany v Dittrich (C124/11, C-125/11 & C-143/11) [2013] 2 C.M.L.R. 12). 69.4. A national agreement granting paid leave days and a marriage bonus (Hay v Crédit Agricole mutuel de Charente-Maritime et des DeuxSèvres (C-26712) [2014] 2 C.M.L.R. 32) 69.5. An award for unfair dismissal compensation (R v Secretary of State for Employment Ex p. Seymour-Smith (C-167/97) [1999] 2 C.M.L.R. 273) 69.6. Compensation for an employee to attend training (Arbeiterwohlfahrt der Stadt Berlin e.V. v Bötel (C-360/90) [1992] 3 C.M.L.R. 446) 69.7. Contractual and voluntarily paid bonuses (Lewen v Denda (C333/97) [2000] 2 C.M.L.R. 38). The CJEU held at [20], “For the purposes of Article 119, the reason for which an employer pays a benefit is of little importance provided that the benefit is granted in connection with employment. It follows that a Christmas bonus of the kind at issue in the main proceedings, even if paid on a voluntary basis and even if paid mainly or exclusively as an incentive for future work or loyalty to the undertaking or both, constitutes pay within the meaning of Article 119 of the Treaty.” (Emphasis added). Prior judicial consideration of Recital 22 of the Framework Directive and Paragraph 18 Sch 9 EQA 2010[70]In Maruko v Versorgungsansalt der Deutschen Buhnen (C-267/06), [2008] 2 CMLR 32, the CJEU considered the application of the Framework Directive to German law in relation to a claim by Mr Maruko, who was surviving life partner in a life partnership made in accordance with German national law. The pension provider had rejected his application for a widow’s pension on the grounds that its regulations did not provide for such an entitlement for surviving life partners. Mr Maruko claimed that the refusal to provide him with a widower’s pension infringed the principle of equal treatment on the basis that to deny a person whose life partner had died was discrimination on grounds of that person’s sexual orientation.[71]Amongst the findings of the CJEU in that case were the following: 71.1. When assessing whether a matter fell within the scope of Article 141 EC, one criterion which might prove decisive was whether the benefit in question was paid to the worker by reason of the employment relationship between him and his former employer (see paragraphs 46 to 48). In that context, reliance was placed upon the decision of the CJEU in Garland v British Rail Engineering Limited (12/81) [1982] ECR 359 above) 71.2. A survivor’s pension provided for under an occupational pension scheme fell within the scope of Article 141 EC (see para 45). 71.3. Recital 22 of the preamble to Framework Directive stated that the Directive was without prejudice to national laws on marital status and the dependent benefits dependent thereon. Admittedly, civil status and the benefits flowing therefrom are matters which fell within the competence of the Member States and Community law did not attract that competence. However, in the exercise of that competence the Member States had to comply with community law and in particular with the provisions relating to the principle of non-discrimination (see paragraphs 58 to 59). 71.4. Since a survivor’s benefit such as that in issue was ‘pay’ within the meaning of Article 141 EC and fell within scope of the Framework Directive, Recital 22 of the preamble to the Framework Directive could not affect the application of Framework Directive (see paragraph 60).[72]Against that background, the compatibility of Paragraph 18 of Schedule 9 of the Equality Act 2010 with the Framework Directive and the Charter rights was considered by the Supreme Court in the case of Innospec Limited v Walker [2017] ICR 1077. It is worthy of note that in that case, given that the claimant had begun employment in 1980 and retired in March 2003, a central issue in dispute between the parties was connected to the fact that the pension in question was based almost entirely on periods of service completed before the coming into force of the Framework Directive. The question of whether or not the national rule was compatible with the Framework Directive, whilst in issue, was not the focal point of the appeal to the Supreme Court.[73]In particular, in Innospec, the Supreme Court held that: 73.1. if Paragraph 18 was, on its face, incompatible with the Framework Directive, it was not open to the courts to interpret that provision in a way that rendered it compatible. The plain purpose of the Paragraph was to create an exception. To nullify that exception would run directly contrary to the “grain” of the legislation, applying Ghaidan - see para 10; 73.2. Schedule 9 of the Equality Act is incompatible with the Framework Directive. In particular, paragraph 18(1)(b) which authorises a restriction of payments of benefits based on periods of service before 5 December 2005 could not be reconciled with the plain effect of the Framework Directive (per Lord Kerr JSC at paragraph 72); 73.3. In so far as paragraph 18 to Schedule 9 permits discrimination on the grounds of sexual orientation, it must be disapplied following the principles articulated in Kucukdeveci and Chester above (see para 74). The respondent’s arguments[74]Firstly, the respondent argues that a distinction can properly be drawn in the case between the provision of service accommodation per se, and the choice of such service accommodation, which the respondent argues is the true issue in the case. The choice of accommodation, it argues, is not pay for the purposes of Article 157 EC because it is not given “by way of reward or consideration for work which they have performed.”[75]Secondly, if contrary to its primary argument, the provision or choice of provision of accommodation is pay for the purposes of Article 157 EC, it argues that paragraph 18(2) is not directly or indirectly discriminatory under EU Law, relying on the Member’s State’s competence enshrined in recital 22 to the preamble.[76]The respondent also relied upon arguments that if its actions were found to be indirectly discriminatory, they were objectively justified. The fact that the respondent relies upon such an argument in relation to an application for strike out at a preliminary hearing belies its lack of focus on the nature of the test to be applied, and the extent to which its application has strayed into matters which can only be issues for the final hearing.
Conclusions
[77]I address each of those arguments in turn, considering the more detailed grounds in the respondent’s skeleton argument. Is the provision of accommodation pay for the purposes of Article 157 EC?[78]The respondent suggests that the subject matter of the claimant’s complaint is not pay for the purposes of Article 157 EC on the grounds that the matter in issue is the choice of accommodation provided, rather than the provision of accommodation itself.[79]That, in my judgement, is to conflate the nature of the benefit, which here is accommodation, with the treatment which is said to be less favourable, being the choice afforded to differing groups in respect of that accommodation. The context of the issue before me is whether the EU has competence in respect of a matter which is subject of these proceedings. The EU’s competence is identified in the Treaties in relation to specific areas and subject matters, such as employment and freedom of movement, not the manner in which those subject matters are made available. There is no support for the respondent’s contention in any of the authorities referred above, and it is entirely inconsistent with the broad drafting of Article 157 and its background in Article 1(8) of ILO Convention C100 Equal Remuneration Convention 1951.[80]Rather, the question to be asked initially is whether the provision of accommodation in relation to employment is pay within the meaning of Article 157 EC. That requires me to focus on the nature of the benefit provided, and not the mechanism by which it was made available. I therefore reject the respondent’s primary argument in relation to this point. I go on to consider whether the provision of accommodation is a consideration in cash or in-kind in respect of the claimant’s employment.[81]The respondent’s secondary line of argument is that the provision of accommodation is not payment of consideration “in cash or in kind” within the terms of Article 157 EC, and furthermore that the provision of accommodation is not linked (effectively or at all) to the work that an individual does.[82]In my judgement, neither argument is well-founded. As was made clear in the Advocate General’s decision in Williams at paragraphs 75 and 78, the relevant criterion is the function of remuneration as consideration from the employer for work undertaken by the employee, in that context “any other consideration” must include any monetary benefit which constitutes such consideration in the broad sense of the term (e.g. one related to increased productivity, such as by improving the working conditions, or promoting health). That consideration needs only be in connection with or related to the employment (see Garland and Lewen v Denda).[83]The respondent also argues that the choice of accommodation is of itself no financial value. However, I reject that argument on the grounds that the nature of the benefit in question is the provision of accommodation, rather than the choice, for the reasons that I have given above. Clearly, the provision of accommodation has financial value. In that context, there is force in the claimant’s arguments that a finite value for the provision of the accommodation can be identified because(a) the respondent is charged a fee in respect of each SSFA or SSSA property by the contractor who sources it and(b) the respondent subsidies the cost of the accommodation when it is found. Although it is, on the basis of my conclusion, unnecessary to consider whether a choice has a financial value, I can see the force in the claimant’s argument that a choice can have a value, using the example of a choice of seats in a stadium, theatre or airplane.[84]The respondent finally argues that in order for a benefit to amount to pay for the purposes of Article 157, “it must be by way of consideration for work which the employee has done.” I reject that argument - again, as Garland, Lewen and Williams make clear, it is sufficient that there is a link between the benefit and work which the employee will do, as opposed to has done. Thus, in Williams the supplements paid to airline pilots constituted pay because they were linked to the pilots’ readiness to make themselves available for work, rather than to work which they had actually done. In Lewen it was enough that the benefit sought to future loyalty.[85]Here, the provision of accommodation which enabled the claimant to undertake work at the site at which the respondent wished to deploy him, necessarily must be connected to the claimant’s readiness to make himself available for work for so long as the employer considered it necessary at that location, and applying Williams (at AG 78) and Lewen, would amount to pay within the meaning of Article 157. Is paragraph 18 (2) directly or indirectly discriminatory under EU law?[86]This question must be determined in the context, as I found it, namely that the provision of accommodation in the circumstances of this case is within the competence of the EU. Consequently, the principle of non-discrimination applies (see Kucucdeveci, confirmed in R (Chester)).[87]The respondent relies upon the case of Parris v Trinity College Dublin and others [2017] 2 CMLR and Maruko (supra) to establish the principle that to make a benefit conditional upon entering into a marriage or civil-partnership is non-discriminatory on the grounds of sexual orientation.[88]It is helpful to identify the decisions in those cases in the chronology of the jurisprudence of the CJEU.[89]Maruko was a decision in 2008, taken shortly after the Charter acquired the definitive status of primary law within the European Union. In that case the United Kingdom argued that Recital 22 to the Framework Directive enshrined a “clear, general exclusion” to the principle of non-discrimination.[90]In rejecting that argument in Maruko, the CJEU held that the fact that the Recital stated that the Framework Directive was without prejudice to national laws on marital status and the benefits dependent thereon, which were matters which fell within the competence of the Member States, did not detract from the competence of Community law. Moreover, in exercising the national competence, member states had to comply with community law in particular with the provisions relating to the principle of non-discrimination (see paragraphs 58 to 59). In consequence Recital 22 could not affect the application of the Framework Directive. The CJEU concluded that if the referring court were to decide that surviving spouses and surviving life partners were in a comparable situation so far as concerned the provision of survivors benefit, then the pension regulations would constitute direct discrimination on the grounds of sexual orientation contrary to Articles 1 and 2(2)(a) of the Framework Directive, as they precluded legislation under which a surviving partner did not receive a survivors benefit equivalent to that granted to a surviving spouse (see paragraphs 72 and 73).[91]The respondent seeks to suggest that the implicit effect of the judgement in Maruko was that had Germany not created a form of civil partnership for same-sex couples which was equivalent to marriage, it would not have been discriminatory under EU law to make payment of the benefit conditional upon entering into a marriage in which only opposites sex couples could participate. I can find no basis in the judgement which supports that premise. The ratio of the case is that Recital 22 did not oust the competence of community law, and therefore member states have to comply with the principle of nondiscrimination in the manner in which they exercise their national competence in applying legislation made pursuant to the Recital.[92]Secondly, the respondent relies upon the decision in Parris. That was a decision handed down on 24 November 2016, prior to the decision of the Supreme Court in Benkabouche (18 October 2017) and the CJEU in Cresco (2019) by which it was held that where there was a conflict between EU law and domestic law, it must be resolved in favour of the former and the latter must be dis-applied.[93]In Parris, the claimant sought a preliminary ruling as to whether the refusal by Trinity College Dublin (“The College”) to grant his life partner, on Mr Parris’s death, the survivor’s pension provided for by the occupational benefit scheme of which he was a member was contrary to the principle of non-discrimination. The relevant national legislation was the Pensions Act 1990, as amended by section 22 of the Social Welfare (Miscellaneous Provisions) Act 2004. Section 72 of that act, at subsection 2 provided that: It shall not constitute a breach of the principle of equal pension treatment on the marital or family status ground for a scheme to provide more favourable occupational benefits where those more favourable benefits are in respect of any person in respect of whom, under the rules of the scheme, a benefit is payable on the death of the member, provided that this does not result in a breach of the said principle on the gender ground.[94]Section 99 of the Civil Partnership Act provided that a “benefit under a pension scheme that is provided for the spouse of a person is deemed to provide equally for the civil partner of a person”. On 21 December 2005 it became possible to enter into a civil partnership in the United Kingdom in accordance with the Civil Partnership Act 2004. Mr Parris registered his civil partnership in the United Kingdom on 21 April 2009, when he was 63. On 15 November 2010, Mr Parris’s request that, on his death, his civil partner should receive a survivor’s pension was rejected by the College.[95]The Higher Education Authority upheld the decision of the College on the grounds that Mr Parris had retired before the recognition of his civil partnership by Ireland, and furthermore that the rules of the College excluded the payment of a survivors benefit where the member married or entered into a civil partnership after the age of 60. As stated, Mr Parris had been 63 at the time that his civil partnership was recognised.[96]Mr Parris brought proceedings against the College, the Higher Education Authority and others (who were then responsible for the administration of his pension), arguing that he had been directly or indirectly discriminated against by reason of his age and sexual orientation.[97]The CJEU found, insofar as is relevant to the current case, that: 97.1. civil partners were not treated less favourably than surviving spouses in relation to the survivor’s benefit, and therefore the national rule did not give rise to direct discrimination on the grounds of sexual orientation. 97.2. marital status and the benefits flowing therefrom are matters which fall within the competence of the Member States and that EU law does not detract from that competence. However, in the exercise of that competence the Member States must comply with EU law, in particular the provisions relating to the principle of non-discrimination. 97.3. The Framework Directive did not require Ireland to provide before 1 January 2011 for marriage or a form of civil partnership for same-sex couples, nor give to retrospective effect to the Civil Partnership Act and the provisions adopted pursuant to that act, nor, as regards the survivor’s benefit at issue in the main proceedings, to lay down transitional measures for the same-sex couples in which the member of the scheme had already reached the age of 60 on the date of entry into force of the act, and the national rule did not therefore constitute indirect discrimination. 97.4. The concept of intersectionality in discrimination (i.e. a combination of the protected grounds of age and sexual orientation) was not a valid form of discrimination.[98]There is nothing within the judgment, in my view, that has any or any significant bearing on the issue before me, namely whether Paragraph 18(2) is compatible with the principle of non-discrimination within the Charter or the Framework Directive. The judgement was confined to its very specific and unique set of facts, involving the effects of provisions which were alleged to be discriminatory either on the basis of sexual orientation, or age, or their combined effect. The issue in the current proceedings[99]The essential nature of the claimant’s claims in the current proceedings is that the respondent’s policy of offering a choice of two substitute accommodation premises to those in marriages or civil partnerships who were living with their spouse or civil partner, whilst offering a single choice of accommodation to those who are single, or married or in a civil partnership but not living with their spouse or civil partner, is indirectly discriminatory, because homosexuals are far less likely, statistically, to be married or to enter into a civil partnerships, and further far less likely still to live with their spouse or civil partner in service accommodation.[100]It will be necessary for the claimant to establish both a group disadvantage, applying the principles in Essop v Home Office [2017] 1 WLR 1343, and that he was individually disadvantaged. Those are questions of fact to be determined after the evidence is heard at a final hearing, and are not susceptible to determination at a preliminary hearing.[101]If the claimant succeeds in establishing those matters, it will be open to the respondent to rely on the defence of justification. Again, the determination of that matter is one of fact for the final hearing.[102]If the respondent fails to prove its justification defence, then the status of paragraph 18(2) of the Equality Act 2010, falls to be considered.[103]In that context, as indicated above, in my view it is prudent to have provided a substantive judgment on that issue, given there are reasonable arguments on those issues as: 103.1. The Decision of the Appeal Body concluded that there had been a breach of the statutory provisions and that the respondent had failed to conduct a quality analysis in relation to the Regulations when in 2015 it determined that it should not reduce SSFA choice from two to one properties to align the policy with that for SSSA. However, it rejected the claimant’s allegations of indirect discrimination on the grounds of the exemption in Paragraph 18(2). 103.2. The claimant identified in his submissions a considerable body of statistics drawn from the Office of National Statistics identifying the respective proportions of the LGBTQIA community and the UK population as a whole who were single and unmarried or not in civil partnership.[104]The provision of accommodation under the Regulations is ‘pay’ for the purposes of Article 157 EC. The principle of non-discrimination therefore applies. Paragraph 18(2), being the legislation through which the UK chose to exercise its national competence in respect of Recital 22 to the Preamble of the Framework Directive, must therefore be(a) interpreted strictly since it seeks to establish an exception the general principle of non-discrimination (Prigge v Deutsche Lufthansa) and(b) to the extent it is non-compatible with that principle or the Framework Directive must be disapplied (Cresco).[105]Paragraph 18(2) expressly provides that a PCP which contravenes the prohibition on non-discrimination on the grounds of sexual orientation is not to be treated as discrimination. It is therefore incompatible with Articles 1 and 2(a) of the Directive and Article 21 of the Charter. It is not possible for Paragraph 18(2) to be interpreted in a way that could be compatible with the Framework Directive or the Charter (Innospec). Paragraph 18 must therefore be dis-applied by the Tribunal should the claimant establish that the application of the Regulations constitutes indirect discrimination.[106]I therefore reject the respondent’s argument that the claimant’s claim has no reasonable prospect of success on the grounds that Paragraph 18(2) provides a complete defence to the claim, and dismiss the respondent’s application for the claim to be struck out pursuant to Rule 37.
Conclusions
[1]Evidence 1.1. The Tribunal heard from the Claimant and from Mr Brennan, currently employed by the Ministry of Defence in the FAM Planning Team but at the relevant time as People-SPSupport-Accom Pol 2. The Tribunal read the documents referred to in the agreed bundle and additional documents provided in the course of the hearing.[2]Issues 2.1. By a claim brought on 1 March 2018, the Claimant claims unlawful discrimination in relation to sexual orientation. 2.2. The issues before the Tribunal to decide are as set out in the agreed list of issues, amplified as to the identification of the pool and the protected group at the hearing. The original numbering is retained for ease of reference. There proved to be points which were not agreed, and those are addressed in the text below in italics. 2.3. The agreed PCP is that:1.1 In order to receive a choice of substitute service accommodation, a person falls into either PStatCat1 or PStatCat 2, namely they:(a) Live with their married spouse or civil partner, or would do so but for the exigencies of service (PCP 1) or(b) Live with a dependent child (PCP2).1.2 It is admitted that the respondent applied the above PCPs to the Claimant and to persons with whom the Claimant did not share the same protected characteristic (sexual orientation) or would have done so. The pool to whom the PCPs were applied is broadly agreed. It is agreed that the PCPs were applied to all those entitled to substitute service accommodation, more fully identified by reference to the table on page 211, namely, single personnel, married and those in civil partnerships living with their partners and single people living with and responsible for a child. There was a remaining issue about the inclusion of involuntarily separated members of couples. 1.3. It is further admitted that the above PCPs put persons with whom the Claimant shared the characteristic, at a particular disadvantage when compared with persons with whom he did not share the characteristic. The group with which the Claimant shared the characteristic is agreed as LGB service personnel, that is those with sexual orientation different from the heterosexual population. The particular disadvantage is not agreed. Notwithstanding the agreement reached, the Respondent proposed that the disadvantaged group is limited to LGB personnel who are members of a couple: “The relevant group disadvantage is suffered by LGB service personnel who wish to occupy SSSA as a couple (who are neither married nor in a civil partnership.” The Claimant identifies the particular disadvantage suffered by the group and the individual disadvantage in his case as that they only received one offer of substitute service accommodation. 1.4. For the purposes of1.3 above, the Respondent admits that persons with whom the Claimant shared the characteristic were less likely to be entitled to a choice of substitute service accommodation because: (a) In relation to PCP1 gay personnel are less likely to be married or in a civil partnership than heterosexual service personnel and (b) In relation to PCP2 they are less likely to have a dependent child. 1.5. Was the Claimant put at the particular disadvantage because of either or both of the PCPs for the reasons at1.4 above? This issue will engage the Tribunal in consideration of paragraphs 32 and 33 of Essop v Home Office [2017] UKSC 27. The Claimant maintains that he was at the same disadvantage as his protected group because he was (and is) gay and unmarried/not in a civil partnership. The Respondent maintains that (in contrast to the position in Essop) the reason for the differential impact referred to in paragraph 1.4(a) above is known, namely that cohabiting gay couples are statistically less likely to be married/in a civil partnership than their heterosexual counterparts. The Respondent maintains that this reason was not operative in the Claimant’s case (because he was not in an actual cohabiting relationship at the relevant time). The Respondent admits that the Claimant was put to a particular disadvantage by PCP 2. 1.6. Were the above PCPs a proportionate means of achieving a legitimate aim? 1.7. The Respondent says that its aims were: As to PCP1: As to PCP 2: The Claimant disputes that 1.7 (a) – (e) above were legitimate aims, as he believes that they were not the Respondent’s genuine aims, and that the Respondent’s true aim was to reduce costs. The Claimant also disputes the proportionality of such aims.[3]Findings of Fact These are the primary findings of fact of the Tribunal. The analysis and consideration of the way the law applies to those facts is given below under “Reasons”. Where two page numbers are given, the second is to the digital version of the bundle. Policy background 3.1. The Ministry of Defence (“MOD”) has a diversity policy, JSP 887 – Diversity, Inclusion and Social Conduct. Objective 4 of the Diversity and Inclusion strategy is “increasing representation of under-represented groups at all levels”. It has an Equality Duty Tookit, to help, “to understand and effectively consider the Public Sector Equality Duty in day to day work and decisions” and which includes guidance on completing an Equality Impact Assessment. That sets out that, “We will only meet current and future security challenges and threats if we draw on and encourage a department where everyone, regardless of background is confident to give their best self, have their efforts and skills properly recognised, their individuality and experiences respected and are able to achieve their potential.” (page 1). 3.2. It describes the Equality Duty, including as to the need to have due regard to the need to eliminate discrimination, harassment and victimisation; to advance equality of opportunity including to, “remove or minimise disadvantages suffered by persons who share a relevant protected characteristic… to take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it” and “encourage persons who share a relevant protected characteristic to participate in public life.” And “to foster good relations between those sharing a relevant protected characteristic and others.” (page 2) 3.3. It is stated to be relevant for all activity across Defence that impacts on people, including policy making – new and existing. 3.4. As to how decision makers are to have due regard to the three aims of the Equality Duty, , it sets out that that is by, Consciously thinking about the three aims Knowledge – being aware of the Equality Duty Sufficient information – decision makers must consider the necessary information, and what that information is Timeliness – consideration must happen before and the time of the decision, not afterwards Real consideration - that is substantive, open-minded and not box ticking Not delegated - the decision maker personally must comply Review - it is a continual duty. 3.5. There was an audit of compliance in 2017, with the report, People – Diversity and Inclusion – Equality analysis, published in January 2018. The Audit Opinion and Conclusion was this: “Testing identified a significant number of policies, projects or services where no evidence was retained of an equality assessment having been undertaken. This included a number that had obvious links to people-related processes. Our testing identified a lack of awareness of the Department’s legal requirements in this area.” (page 1). 3.6. The approach taken was to sample polices projects and services to determine the degree to which assessment of equality impact had been undertaken. Accommodation Policy 3.7. The MOD accommodation policy is set out in the JSP 464. 3.8. Military personnel have access to military provided accommodation, on-site, that is, in mess or barrack accommodation at MOD sites, or externally sourced, that is, substitute service accommodation. At the relevant time, Mears Group plc was, and still is, responsible for sourcing and managing all aspects of the provision of substitute accommodation (Brennan, ws, para 7). 3.9. This is explained in outline in the Equality Impact Assessment in respect of the change to SSSA, carried out in 2019, “SP” referring to service personnel. “7. An SP is, in principle entitled to family accommodation if they are(a) married or in a civil partnership and they are living with their spouse/civil partner (a category known as Personal Status Category 1 (PStatCat 1)) and/or(b) they have parental responsibility for and residence of a child (PStatCat 2)). PStatCat 2 does not contain a requirement to be married or in a civil partnership. All other personnel are only eligible for single accommodation, in the form of SLA or itself substitute variant.[8]Accommodation for all SP (whether family or single) generally falls into two categories, namely accommodation which is owned and operated by the Services and, where this is not available, accommodation which is sourced externally, through an agreed contract. Family Accommodation from within the military estate is entitled “Service Family Accommodation” (SFA) and accommodation which is sourced externally is described as “Substitute Service Family Accommodation” (SSFA). The equivalent terms for single personnel are SLA and SSSA.” (324 – from the Equality Impact Assessment 2019)” 3.10. As to entitlement, there were a number of exceptions and variations to the categories above, for example by virtue of specific appointments, or roles, such as Service Chaplains with pastoral responsibility, but the distinction between those entitled to “family” accommodation and those entitled to accommodation for single individuals is the key distinction in the provision of accommodation. 3.11. While provision is made for those in formal relationships, that is married or in civil partnerships, there is a bar on informally cohabiting in service or substitute service accommodation. Not only is there no entitlement for informally cohabiting couples to “family” accommodation, but an absolute bar to cohabiting relationships in service accommodation. Such cohabitation ends entitlement to service accommodation, “Under no circumstances may single personnel and single and lone parents co-habit with a partner (who is not their legal spouse o/ civil partner) in SSSA. Cohabitation describes a situation where the SSSA becomes the home of another person…” (335/358 JSP 464, Sept 2015) “Under no circumstances may Service or Civilian personnel co-habit with a partner (who is not their legal spouse/civil partner) in SFA or SSFA. “Cohabitation describes a situation where the accommodation becomes the home of another person.” (342/365 July 2017) 3.12. That policy is now under review and informal couples if duly registered have since 1 April 2019 been permitted to occupy surplus SFA accommodation but without the financial allowances for married and civil partner couples. 3.13. The system allowed one offer of accommodation to single service personnel entitled to MOD on-site accommodation – SLA. Those entitled to SFA and SSFA were entitled to two offers of accommodation, as were those entitled to substitute service accommodation as single officers, SSSA. 3.14. Change was proposed in a revised DIO options paper in 2015, adopted and implemented in 2016. The new policy provided one offer only of property for single officers entitled to substitute service accommodation, the SSSA group. Entitlement for those entitled to SFA and SSFA continued unchanged; they were entitled to two offers. (Version 2.025 of JSP 464 Vol 2 Part 2, in force 25 January 2016, 338/361). 3.15. It is that change that is the basis for this claim. The 2016 Accommodation Policy Change 3.16. From around 2014, the contract for substitute service accommodation was being recompeted, and that provided the opportunity to change the policy. 3.17. On 12 February 2015, there was a meeting of the Accommodation Policy Working Group (“APWG”) at which it was proposed removing the choice of accommodation from those entitled to SSSA and SSFA, that is, all substitute service accommodation (74/ 96). The minute reads, “2nd offer SSFA DIO Ops Accn-PR3a had provided a revised options paper to the APWG seeking agreement to remove inconsistencies in the policy governing choice of substitute accommodations. The proposal was to remove the choice of two properties for SSSA and SSFA based upon a number of benefits for both the occupant and the Dept. Though there could be presentational issues with how “removing choice” could be perceived by SP and Families Federations, the proposal was generally supported by the APWG.” (74/96). 3.18. The minutes are brief throughout and do not record discussions. The paper referred to was presented by the Defence Infrastructure Organisation (“DIO”). That paper has not been produced to the Tribunal, nor the original of which it was a revision. It is clear that the proposal supported was for the removal of choice in respect of any substitute service properties, whether for PStatCat 1 or 2 or PStatCat 3 to 5. 3.19. There was a further meeting of the APWG on 10 March. Those minutes have not been produced. The position as at that meeting is explained in the email correspondence. The chain starts with a DIO enquiry dated 17 April 2015 (78/100), “I know that this has been discussed for some time and that in principal (sic) it has been accepted bringing substitute in line with SFA and SLA. This is a key factor in the new contract and will bring the costs down considerable [sic] do you know what the decision is..” (8.37 an email from DIO SD Accn-SSM3b1 to People-SPSupport-Accom Pol 1) 3.20. The urgency was to get this into the new contract. The enquiry still relates to both SSFA and SSSA offers. 3.21. There follows an email of 20 April 2015 at 11.42 from People-SPSupport - Accom Pol 1, responsible for accommodation policy development. It was addressed to the APWG and sent to or copied in Mr Brennan, the DIO officer responsible for delivery and assurance of the MOD substitute service contract with Mears and representatives from the RAF, the Navy, the Army and Defence Equipment and Support. It has the heading “Choice of SSSA-SSFA for Substitute Accommodation Contract Re-let SofN”. Mr Brennan was at this time the Secretary of the APWG. 3.22. It reported the enquiry from DIO, It notes that there had been further correspondence since the issue of the APWG minutes and writes to clarify the writer’s understanding of the position, “We agreed to reduce the choice of 2x SSSA rooms bed space offered to SP to just 1 SSSA offer but still keep the 2 choices for SSFA. SP may reject it if it could be demonstrated that the room/bed space did not meet their original search criteria. The rationale for our agreeing the reduction was(1) to align choice with existing Policy with SLA (SP’s get just the one offer’ of SLA) and(2) to reduce contractor/DIO costs in searching for a second property and holding it whilst the SP considers their options. SSFA: We also discussed doing the same for SSFA on the basis that (1) in some instances only 1 x SFA is available, so it would be consistent to reduce SSSA (the context requires that this should read SSFA) to 1 x offer (rather than preserve the current 2 in all cases); and, (2) again, to reduce contractor’s costs. But we agreed not to because (1) the case was not as compelling for SSSA, and, (2) there could be greater reputational risk (e.g. Fam Feds might see it as an erosion to the offer). But we also said it was within the gift of APWG to review SSFA again, if ever we wanted to change this position.” (77/99). 3.23. We do not have the earlier correspondence referred to in the course of which this decision was reached and so we do not have access to any detailed reasoning. 3.24. On 20 April 2015 at 16.36, there was a response from the RAF representative (76) “I think you have summarised the piece wrt where we got to in the last APWG meeting. However, although we should aim to reduce costs where possible, I think that we also need to maintain opportunities whereby a rejection of SSSA for justifiable reasons including and beyond those of not meeting the search criteria, would afford the ability to consider the first offer of SSSA in exceptional circumstances, ….. Therefore reduction of the number of SSSA properties offered in the first instance must be combined with a policy piece on rejection and offer of an alternative in the event of not meeting search criteria (so that SP are not just offered any property) and in other justified exceptional circumstances.” 3.25. That email goes on, “Air Cmd does not support the reduction of the SSFA property offers at this time since it would not be commensurate with equality of treatment for SFA particularly when the SP (and family /domestic) dynamic is much more complicated for this cohort” (76/98) 3.26. There is then an email at 17.04, giving the following instruction to DIO, “We would like you to reflect the following please: The contractor to provide 1 x SSSA offer for Service Personnel (SP) SP may, in exceptional circumstances, appeal to the Housing Colonel to reject the offer for compelling reasons beyond that it did not fulfil the original search criteria eg. dark / dangerous route from public transport/highway Suitable alternative SSSA should be offered to the SP where the appeal is accepted by the Housing Colonel.” (75/97) 3.27. The suggestion of an appeal beyond that the property offered did not fulfil the original search criteria is not referred to by Mr Brennan in his witness statement and does not appear in the amended version of the policy, incorporating the removal of the second offer. The Claimant has not found any policy reference to it and was not offered an appeal. We conclude that there is no appeal as proposed for exceptional circumstances. 3.28. Mr Brennan tells us that including two choices for single people in the Mears contract, DIO advises, would have cost an additional £2,793,950 over the life of the 5- year Mears contract, based on an additional transaction cost of £56 per offer compared to sole-occupancy SSSA and £117 per offer compared to multi-occupancy SSSA (Brennan, ws para 14). 3.29. We do not have the figures for reducing choices for those entitled to SSFA, families, although that had been canvassed until April before being dropped. 3.30. The minutes of the 20 August 2015 APWG meeting contain this, “Chair offered to clarify the position as last recorded in the 10 March 2015 minutes, “namely, the APWG agreed to reduce the choice of 2 x SSSA to 1 x SSSA whilst retaining the 2 choices for SSFA and this would come into effect in policy once the new Substitute Accommodation contract was let (date TBA) The Chair’s email of 20 April (attached) offers more background. Item Closed.” (80/102) 3.31. The new policy came into force on 25 January 2016 (Brennan, ws 11, 338/361). 3.32. On 24 March 2016, the Equality Assessment Template in respect of the Combined Accommodation Assessment System (“CAAS”) was completed relating to a change introduced on 1 April 2017 (81/103). This related to a different accommodation policy change, approved in October 2014 in respect of Service Family Accommodation with effect from 1 April 2016 (sic). It applies to those charged for occupancy. There is no detail of the policy and no identification of how it applies beyond that. It states, “We anticipate that there will be minimal or no impact on the following groups: Race/Age/Disability/Civil Partnership and Marriage/ Maternity or Pregnancy/ Gender Reassignment.” 3.33. Sexual Orientation is left out as is religion and belief, apparently in a failure to complete the list. As to why there would be no impact on any service users it is recited that, “It should not discriminate against those in a protected group. All efforts have been taken to eliminate or minimize any adverse effects on Service personnel who share a protected characteristic and the equality impacts have been considered throughout the scheme development process.” 3.34. It does not explain any possible adverse impacts considered or how the issue was explored. 3.35. As to how the policy contributed to meeting the general equality duties to which MOD is subject, there is the following, “The policy underpinning CAAS is applicable to all eligible Service personnel regardless of whether they share a protected characteristic or not.” 3.36. There is little other content. FAM 3.37. The Ministry is exploring a substantial change to the accommodation policy in the Future Accommodation Model (“FAM”), a project still at a pilot stage. Part of the rationale of FAM is because Service Personnel have indicated they want more, not less, choice about their accommodation. Facts of this case. 3.38. The Claimant commenced service with the Royal Navy in 2003. 3.39. In 2016, the Claimant was assigned to Bristol. 3.40. He was due to be assigned to a rural location with an MOD base. His sexual orientation was known to his careers officer (318). He raised concerns about the assignment, but that remained his careers officer’s plan. The Claimant had previously served at that base. He knew the MOD accommodation there. It created difficulties, “The difficulty of SLA for a gay man …. living in a mess is not a very private experience, people know who is coming in and out, you are behind security fences, if you want to meet someone, you have to write it down and get it approved. I don’t usually reveal my sexual orientation to my line management, I keep it private …. and I mentioned brain drain effect, …. people who can and have the wherewithal choose to move to London and if not move to Bristol.” 3.41. The change of plan arose from an intervention from Navy Command Legal who he reports “were concerned about assigning me (there) because of the potential diversity issues the accommodation situation there would present.” 3.42. He was unaware of that intervention at the time. He explains, “I guess the preamble to it, I raised concern about the accommodation situation. He (the careers officer) said, “It shows you can suffer, so you have potential for leadership. That is the material the Board looks for.” I said, “I don’t think I should have to suffer to show my competence.” I assume he took that back to Navy Legal.” 3.43. The Board referred to is the Promotion Board. 3.44. He learned of Navy Legal’s involvement much later, from his career officer, who told him that he had “had a roasting” about his initial plan. 3.45. Having been assigned instead to Bristol, on 23 May 2017, the Claimant applied for substitute service single living accommodation (SSSA). Under the revised policy, he was only entitled to one offer of accommodation. 3.46. His preference was for city centre accommodation. 3.47. He explains his preference on the basis that, unlike the non-LGB community, certain communities, including the LGB community, are of their nature small. People tend to cluster together, networks are established where those clusters are. Elsewhere, people can be very isolated. 3.48. On 28 June 2017, the Claimant was told accommodation was available in Bradley Stoke. Bradley Stoke is a new town created for with families in mind. 3.49. He viewed the accommodation on 4 July 2017. He raised his concerns with the Mears representative, including that there was an equality aspect to them. The offer failed to take proper account of his circumstances. (Claimant, ws, para 5) 3.50. He discussed the accommodation with his 2-star, who spoke to the Commanding Officer. In doing so, he had to explain his sexual orientation for the first time to senior officers in the team where he had been working for some time, and he found that difficult. 3.51. For want of alternatives, he moved into the accommodation offered on 11 July 2017 and his Bristol assignment started on 17 July 2017. 3.52. Substantial further correspondence ensued, with requests by the Claimant for disclosure of information and the submission of a Special to Type Complaint and a Service Complaint, the latter in February 2018. In the course of that, an email in January 2017 was circulated to a wider group which referred to the possibility of a claim based on discrimination, in relation to the allocation of accommodation and to the sensitivity of the matter, leaving it open to members of the wider group to draw conclusions as to the protected ground relied on, to the Claimant’s concern, given that it was contrary to his wish for privacy. 3.53. The Service Complaint ran to 109 pages, carefully researched and presented. The Claimant raised issues in relation to Equality Analysis, indirect discrimination, equality of opportunity, governance and organisational issues, the accommodation complaints system and policy compliance. 3.54. On 1 March 2018, the Claimant submitted his Employment Tribunal claim, mindful of the time limit. 3.55. 30 July 2018 he learned of the DIA audit into equality analysis and he made an Freedom of Information request for details. He received it on 28 September 2019. 3.56. The investigation report into his complaint was issued in December 2018 (196). 3.57. On 11 February 2019, the Respondent applied for the Employment Tribunal claim to be struck out. 3.58. On 30 April 2019, the Respondent’s decision body dismissed the complaint of indirect discrimination, in reliance on para 18(2) of Schedule 9 of the Equality Act 2010. The issue relating to the difference in treatment between single personnel and service personnel having children living with them, PCP2, was not separately considered (234/256) 3.59. A number of failings were recognised, The MOD failed in its statutory duty to conduct an Equality Assessment of the change to its revised SSSA Accommodation Policy The MOD failed to comply with MOD policy that required an Equality Impact Assessment on the change to SSSA policy The MOD failed in its statutory Public Sector Equality Duty, under section 149 of the Equality Act 2010, to consider the impact on equality of the changes to SSSA policy and in failing to consider how to meet the needs of protected groups and increase their participation in public life The failure to consult with under-represented groups in the development of accommodation policy likely contributed to the failure of the MOD to have due regard for equality matters in recent changes to JSP 464. 3.60. There were apologies for those and for failures of governance and in relation to the complaints processes. MOD processes were held to be flawed with inadequate record keeping, inadequate training and awareness of Equality Assessments and it was held that it had become normal practice to fail to conduct Equality Assessments of the accommodation policy JSP 464. 3.61. It was held that the MOD’s change of policy to limit to one the choice of SSSA accommodation would have a disproportionate effect on the group of Service Personnel who identify as gay (254/276). 3.62. The claim of indirect discrimination was not upheld on the basis that the exemption in the Equality Act para 18(2) of Schedule 9 of the Equality Act 2010 applied (285/307). 3.63. There were a substantial number of recommendations, including that, An EA (Equality Assessment) of the revised policy to reduce to one the number of choices of SSSA accommodation is subject to an EA within 20 working days The MOD develops a prioritised action plan, with clearly defined timelines, for the conduct of Equality Impact Assessments on all its policies, within 3 calendar months The MOD conducts a cultural analysis of its approach to its statutory duties and policy defined procedures, for the handling of diversity and inclusion matters in its policy making and complaints handling The MOD conducts a training needs analysis to identify any training required for staff who conduct Equality Impact Assessments The MOD set in place, within 6 months of this notification, any necessary training required to support statutory and policy compliance with the Public Sector Equality Duty defined in the Equality Act 2010 and the MOD's Diversity and Inclusion Strategy in JSP 887 The MOD conducts Equality Impact Assessments on all its policies within 12 months of this notification, ensuring meaningful engagement with the relevant representative groups for all the protected characteristics The MOD sets in place procedures that ensure the conduct, assurance and reporting of all necessary periodic Equality Impact Assessments across the Department, required to meet the MOD's obligations in statute and policy. The MOD reviews its record taking and keeping procedures and requirements to appropriately support diversity and inclusion matters across Defence and sets in place appropriate policy and procedures within 6 months The MOD reviews and identifies how best to publish its Equality Act work, along with the supporting evidence, whenever possible 3.64. Others related to the handling of complaints and freedom of information procedures, with regular review and reporting on progress. 3.65. The Claimant appealed on 17 June 2019 (275). He did so on the basis that the MOD was not entitled to rely on para 18((2) of Schedule 9 because it was not relevant or lawful and that the decision body had failed to consider the relevance of the different treatment of those with dependent children. He referred to the Supreme Court case of Walker v Innospec 2017 in support of the first point (289). 3.66. He set out the statistical evidence showing that those with dependent children were predominantly heterosexual and the reasons for that – the predominance of women amongst single parent families, the predominance of men in the forces, the requirement in some cases that there was a prior marriage – to support the conclusion that gay personnel will be disproportionately represented amongst those who do not have dependent children. 3.67. He concluded that the change in the accommodation policy as regards choice had put gay people at a disadvantage when none existed before and undermined the trust in the MOD’s leadership on diversity issues (293/316). 3.68. On 3 July 2019, the Appeal Body dismissed the appeal (308/330), refusing to consider the argument that the exemption in Schedule 9 paragraph 18(2) was unlawful or that there was discrimination in relation to the choice afforded those living with children. It was not accepted either that there had been any wrongful disclosure of his sexual orientation in the email in January 2017. 3.69. On the 29 November 2019, there was an Equality Analysis Impact Assessment in respect of the change in policy relating to the reduction in the number of offers provided to service personnel. It was retrospective, an assessment in respect of the change made in 2015 (323/345). 3.70. It records that better use of accommodation and bed space management could be achieved if the SSSA policy emulated that for SLA, without choice. “11 It was recognised and discussed by the Accommodation Policy Working Group (APWG), at the time of the requirement to renew the existing Substitute Accommodation contract in April 2015, that a better use of accommodation and bed space management could be achieved if the policy for SSSA emulated that for SLA and allocated a bed space/property rather than offering a choice. It was foreseen that there would be subsequent savings in procurement of properties and bed spaces if the policies were aligned and were allocated correctly. That there would be fewer transaction costs and in a faster moving market, it was more cost effective to allocate a space or one bedroom flat than search for two properties.[12]Therefore, the current system of allocating a room for SSSA is broadly equivalent to SLA and enables the contractor on behalf of MOD to manage the use of the properties on the scheme more effectively. It also means that single occupancy properties can be kept on the scheme and less are handed back at the end of each tenancy, reducing the need for sourcing, because of the higher turnover, it enables the contractor to negotiate longer leases, which in turn can reduce the cost. There is a benefit to the SP, in that there is less time spent in temporary accommodation whilst a new property is sourced and finalised, and the ability to plan ahead as they can be given an address before their required move date.” (325 /347). 3.71. The assessment made in respect of sexual orientation is this, “d) Impact on Sexual Orientation - The application of the policy for the provision of SLA and/or SSSA is gender and sexual orientation neutral and accommodation is provided appropriate to one's military rank. It is considered that this policy change will have no adverse equality impacts on this group. In addition, it is not capable of being indirectly discriminatory on the basis that it differs from the provision under SSFA in as far as it relates to PStatCat 1 personnel as Schedule 9, Part 3, Para 18(2) of the EA10, allows benefits to be provided exclusively to those who are married or in a civil partnership. While the less advantageous provision to that of SSFA to PStatCat 2 personnel is capable of being indirectly discriminatory, it is considered that the additional choice for both PStatCat 1 and PStatCat 2 personnel is justified as accompanied SP’s have additional family member’s needs that require being taken into account e.g. schooling, or co-located partner’s workplace travel requirements. Therefore, the impact is Low.” Statistics 3.72. Given the concessions made by the Respondent, statistics are less relevant in this case, but the Claimant has put forward figures that afford useful background. The population identifying as lesbian, gay or bisexual (LGB) were most likely to be single, never married or never civil partnered (70.7%) (Office of National Statistics (“ONS”) Sexual Identity UK 2016). ONS Population estimates by marital status and living arrangements, England and Wales: 2002 to 2016 (released July 2017) states that the percentage of the overall UK population aged 16 and over and classed as “single, never married or civil partnered” is 34.6%. ONS data states that 2.00 % of the UK population aged 16 or over identify themselves as lesbian, gay or bisexual (155/177). 3.73. The Claimant concludes and we agree, nor is it in dispute, that members of the LGB community are substantially more likely to be single than the heterosexual population. 4. Law Indirect Discrimination 4.1. Indirect discrimination is defined in section 19 of the Equality Act 2010 (“EA 2010”) in this way: “(1) A person(a) (A) discriminates against another(b) (B) if A applies to B a provision, criterion or practice (“PCP”) which is discriminatory in relation to a relevant protected characteristic of B’s. (2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if - (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,(c) it puts, or would put, B at that disadvantage, and(d) A cannot show it to be a proportionate means of achieving a legitimate aim.” 4.2. Subsection (3) lists the relevant protected characteristics, which include sexual orientation. 4.3. Schedule 9 paragraph 18(2) contains an exemption given effect by section 83(1), namely that, “(2) A person does not contravene this Part of this Act, so far as relating to sexual orientation, by providing married persons and civil partners (to the exclusion of all other persons) with access to a benefit, facility or service.” 4.4. In the Judgment dated 8 November 2020, on the Respondent’s application for the claim to be struck out has having no reasonable prospect of success, Employment Judge Midgley ruled paragraph 18(2) of Schedule 9 of the EA 2010 incompatible with Articles 1 and 2(a) of the Framework Directive 2000/78 and Article 21 of the Charter of Fundamental Rights of the European Union and that it is not possible to interpret paragraph 18(2) in a way that could be compatible with the Framework Directive or the Charter. That was for the reasons set out in the judgment which we adopt and apply. Paragraph 18 must therefore be dis-applied by the Tribunal. It is not now relied on by the Respondent. 4.5. All four conditions in subsection (2) must be met before a successful claim for indirect discrimination can be established. In other words, there must be a PCP which the employer applies or would apply to employees who do not share the protected characteristic of the claimant; that PCP must put people who share the claimant’s protected characteristic (here, sexual orientation) at a particular disadvantage when compared with those who do not share that characteristic; the Claimant must experience that particular disadvantage; and the employer must be unable to show that the PCP is justified as a proportionate means of achieving a legitimate aim. 4.6. It is for the Claimant to establish that the first three elements apply – that there is a PCP, - that is, the Claimant must identify the requirement or condition that is challenged - that it disadvantages those sharing the protected characteristic generally, by comparison with others, and that creates a particular disadvantage to the claimant. At that point, it is for the respondent to justify the PCP as a proportionate means of achieving a legitimate aim. 4.7. In Essop v Home Office, Supreme Court, [2017] 1 WLR, the difference between direct and indirect discrimination is explained by Lady Hale, as follows. “Direct discrimination expressly requires a causal link between the less favourable treatment and the protected characteristic. Indirect discrimination does not. Instead it requires a causal link between the PCP and the particular disadvantage suffered by the group and the individual. The reason for this is that the prohibition of direct discrimination aims to achieve equality of treatment. Indirect discrimination assumes equality of treatment - the PCP is applied indiscriminately to all - but aims to achieve a level playing field, where people sharing a particular protected characteristic are not subjected to requirements which many of them cannot meet but which cannot be shown to be justified. The prohibition of indirect discrimination thus aims to achieve equality of results in the absence of such justification. It is dealing with hidden barriers which are not easy to anticipate or to spot. – (Essop, para 25) “…The reasons why one group may find it harder to comply with the PCP than others are many and various (Mr Sean Jones QC for Mr Naeem called them “context factors”). They could be genetic, such as strength or height. They could be social, such as the expectation that women will bear the greater responsibility for caring for the home and family than will men. They could be traditional employment practices, such as the division between “women’s jobs” and “men’s jobs” or the practice of starting at the bottom of an incremental pay scale.” “These various examples show that the reason for the disadvantage need not be unlawful in itself or be under the control of the employer or provider (although sometimes it will be). They also show that both the PCP and the reason for the disadvantage are “but for” causes of the disadvantage: removing one or the other would solve the problem. (para 26)” “…There is no requirement that the PCP in question put every member of the group sharing the particular protected characteristic at a disadvantage. The later definitions cannot have restricted the original definitions, which referred to the proportion who could, or could not, meet the requirement. Obviously, some women are taller or stronger than some men and can meet a height or strength requirement that many women could not. Some women can work full time without difficulty whereas others cannot. Yet these are paradigm examples of a PCP which may be indirectly discriminatory. (Essop, para 27) 4.8. It is not necessary to show why the PCP puts people sharing a protected characteristic at a disadvantage (Essop) The key element is the causal link between the PCP and the particular disadvantage suffered by the group and the individual. 4.9. Disadvantage is not defined in the Equality Act. The Equality and Human Rights Commission Code of Practice on Employment 2011 (“the Code”), at paragraph 4.9, says this: “’Disadvantage’ is not defined by the Act. It could include denial of an opportunity, or choice, deterrence, rejection or exclusion. The courts have found that ‘detriment’, a similar concept, is something that a reasonable person would complin about – so an unjustified sense of grievance would not qualify. A disadvantage does not have to be quantifiable and the worker does not have to experience actual loss (economic or otherwise). It is enough that the worker can reasonably say that they would have preferred to be treated differently.” 4.10. Section 19 requires a comparison between workers with the protected characteristic and those without it. 4.11. The circumstances of the two groups must be sufficiently similar for a comparison to be made and there must be no material differences in circumstances. By section 23 of the EA 2010, “On a comparison of cases for the purposes of sections 13, 14 and 19, there must be no material difference between the circumstances relating to each case.” 4.12. This is dealt with by the Code of Practice from paragraphs 3.22 and 4.15. 4.13. For the purposes of assessing the impact of the PCP on the group sharing the protected characteristic as against the wider group, the pool of all those affected by the PCP has to be identified. The identification of the pool is not a matter on which the burden of proof falls on the Claimant. It is a matter not of fact but of logic (Allonby v Accrington and Rossendale College [2001] ICR 1189 (CA) (para 18). 4.14. The Code at para 4.18, advises that: “In general, the pool should consist of the group which the provision, criterion or practice affects (or would affect) either positively and negatively, while excluding workers who are not affected by it, either positively or negatively.” 4.15. In other words, all the workers affected by the PCP in question should be considered. 4.16. The comparison must then be made with those sharing the protected characteristic. The Code at paragraph 4.19, says this, “Looking at the pool, a comparison must be made between the impact of the provision, criterion or practice on people without the relevant protected characteristic and its impact on people with the protected characteristic.” 4.17. What is being considered is the particular disadvantage suffered by the group sharing the protected characteristic when the PCP is applied, that is, the disparate impact on that group as against the wider group. The test considers the intrinsic disadvantage to the group with the protected characteristic arising from the general application of the PCP to the wider pool. The pool must consist of the group which the PCP affects (or would affect) either positively or negatively, while excluding workers who are not affected by it (Dobson v North Cumbria Integrated Care NHS Foundation Trust v Working Families (para 18), and Essop, above para 41 ) 4.18. If there are a range of logical options to be considered in relation to the PCP, the Tribunal should consider each: “In reaching their decision as to the appropriate pool in a particular case, a Tribunal should undoubtedly consider the position in respect of different pools within the range of decisions open to them; but they are entitled to select from that range the pool which they consider will realistically and effectively test the particular allegation before them.” 4.19. There is no need for the Claimant to prove the reason why the PCP in question puts or would put the affected group at a particular disadvantage. “In order to succeed in an indirect discrimination claim, it is not necessary to establish the reason for the particular disadvantage to which the group is put” (Essop para 33) “How, it is said, can one know what that disadvantage is unless one knows the reason for it? What is required by the language is correspondence between the disadvantage suffered by the group and the disadvantage suffered by the individual. This will largely depend upon how one defines the particular disadvantage in question. If the disadvantage is that more BME or older candidates fail the test than do white or younger candidates, then failure is the disadvantage and a Claimant who fails has suffered that disadvantage. If the disadvantage is that BME and older candidates are more likely to fail than white or younger candidates, then the likelihood of failure is the disadvantage and any BME or older candidate suffers that disadvantage.” (Essop, para 31): 4.20. In relation to the impact on the claimant, it is essential that the Claimant suffers the same disadvantage as the group “The essential element is a causal connection between the PCP and the disadvantage suffered, not only by the group, but also by the individual.” (Essop, para 33) 4.21. The Respondent can argue that the particular Claimant was not put at that disadvantage, if there are other, perhaps personal, reasons for the outcome, other than the PCP – the example used is that that particular exam candidate did not study, or did not show up for the exam (Essop, para 32). Alternatively, a Respondent may assert that the Claimant was not in a comparable situation for the purposes of section 23 of the Act, ie, that there was a material difference between the Claimant and the others in the comparison (Ryan v South West Ambulance Services NHS Trust [2021] IRLR 4). In either case, it is up to the Respondent to prove that the discriminatory effect of the rule was not at play in this case. 4.22. A PCP is justified if the employer can show that it is a proportionate means of achieving a legitimate aim. To be proportionate, a measure has to be both an appropriate means of achieving the legitimate aim and necessary in order to do so (Homer v Chief Constable of West Yorkshire [2012] IRLR 601). 4.23. In Hampson v Department of Education and Science CA [1989] ICR 179 in the Court of Appeal, Lord Justice Balcombe said the true test involved striking “an objective balance between the discriminatory effect of the condition and the reasonable needs of the party who applies the condition”. 4.24. As Mummery LJ explained in R (Elias) v Secretary of State for Defence [2006] EWCA Civ 1293, [2006] 1 WLR 3213, at [151]: ". . . the objective of the measure in question must correspond to a real need and the means used must be appropriate with a view to achieving the objective and be necessary to that end. So it is necessary to weigh the need against the seriousness of the detriment to the disadvantaged group." 4.25. He went on, at [165], to commend the three-stage test for determining proportionality derived from de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69, 80: - Is the objective sufficiently important to justify limiting a fundamental right? Is the measure rationally connected to the objective? Are the means chosen no more than is necessary to accomplish the objective? 4.26. It requires the Tribunal to carry out a critical evaluation of the justification put forward, such that the employer’s needs against the seriousness of the discriminatory effect are balanced and weighed. That assessment will involve a fair and detailed analysis of the employer’s business needs and working practices – not simply accepting the employer’s reasoning- and also the actual discriminatory effect generally and on the Claimant in particular. (Ryan above; Hardy and Hansons plc v Lax [2005] ICR CA; Allonby, above)). 4.27. The outcome may depend on whether there were non-discriminatory alternatives, or less discriminatory alternatives, available. 4.28. Cost alone will not justify a discriminatory act, but cost may be a factor in a legitimate decision based on wider considerations (Woodcock v Cumbria Primary Care Trust [2012] IRLR 491 and see HM Land Registry v Bnson and ors [2012] ICR 627). Almost any decision by an employer will be taken with regard to costs, to a greater or lesser degree. It is necessary to arrive at a fair characterisation of the employer’s aim taken as a whole to decide whether the aim was legitimate. And it is legitimate for an organisation to seek to operate within its means and to make decisions about the allocation of its resources (Heskett v S of S for Justice [2021] CA IRLR 132). 4.29. In Pulham and ors v London Borough of Barking and Dagenham [2010] ICR 333 EAT, Mr Justice Underhill commented that the legitimate aim which the measures taken by the employer are intended to achieve must be identified. But the dichotomy of “aim” and “means” is not always clearcut ….”Tribunals need not cudgel their brains with metaphysical enquiries about what count as aims and what count as means as long as the underlying balancing exercise is carried out.” 4.30. In assessing the discriminatory effect, the impact on those sharing the relevant protected characteristic is to be considered including the damage or disappointment caused to them and their duration; so too the particular hardships suffered by the claimant, provided proper attention is paid to the question of how typical those hardships are of others adversely affected (University of Manchester v Jones [1993[ ICR 474 CA). Burden of proof 4.31. By section 136(2) and (3) of the EA 2010, the test in respect of the burden of proof is set out: “(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.” (3) But subsection (2) does not apply if A shows that A did not contravene the provision.’ 4.32. That provision applies to any proceedings relating to a contravention of the EA 2010. 4.33. The switching of the burden of proof is simply set out in the Code at para 15.34: “If a Claimant has proved facts from which a tribunal could conclude that there has been an unlawful act, then the burden of proof shifts to the respondent. To successfully defend a claim, the respondent will have to prove, on balance of probability, that they did not act unlawfully. If the respondent’s explanation is inadequate or unsatisfactory, the tribunal must find that the act was unlawful.” 4.34. For the burden of proof to shift, the Claimant must show facts sufficient – without the explanation referred to – to enable the tribunal to find discrimination. The guidelines derived from the Barton case (Barton v Investec Securities Ltd [2003] ICR 1205) as amended in the Igen case (Igen v Wong, 2005 IRLR 258 CA), remain the basis for applying the law notwithstanding the re-enactment of discrimination legislation in the 2010 Act. It is those guidelines that establish the two-stage test, “The first stage requires the complainant to prove facts from which the Employment Tribunal could, apart from the section, conclude in the absence of an adequate explanation that the respondent has committed, or is to be treated as having committed, the unlawful act of discrimination against the complainant. The second stage, which only comes into effect if the complainant has proved those facts, requires the respondent to prove that he did not commit or is not to be treated as having committed the unlawful act, if the complaint is not to be upheld (para 17, Igen) 4.35. The Tribunal is required to make an assumption at the first stage which may be contrary to reality. 4.36. In Hewage v Grampian Health Board [2012] UKSC 37, the application of the Barton/Igen guidelines to cases under the EA 2010 is approved at the highest level. At paragraph 33, Lord Hope, on the burden of proof provisions, says, “They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence…” 4.37. In Laing and Manchester City Council and others, 2006 IRLR 748, the correct approach in relation to the two-stage test is discussed, “No doubt in most cases it will be sensible for a tribunal formally to analyse a case by reference to the two stages. But it is not obligatory on them formally to go through each step in each case…. (para 73) The focus of the tribunal’s analysis must at all times be the question whether or not they can properly and fairly infer race (or other) discrimination. If they are satisfied that the reason given by the employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is the end of the matter. It is not improper for a tribunal to say, in effect, ‘there is a nice question as to whether the burden has shifted, but we are satisfied here that even if it has, the employer has given a fully adequate explanation as to why he behaved as he did and it has nothing to do with race’. 4.38. The nub of the question remains why the Claimant was treated as he or she was: “The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.” (Madarassy v Nomura International plc) 2007 IRLR 246). 4.39. In that case, in a judgment later approved by the Supreme Court in Hewage, above, Mummery LJ pointed out that the employer should be able to adduce at stage one evidence to show “that the acts which are alleged to be discriminatory never happened; or that, if they did, they were not less favourable treatment of the complainant; or that the comparators chosen by the complainant or the situations with which comparisons are made are not truly like the complainant or the situation of the complainant.” 4.40. The “something more” that may lead a Tribunal to move beyond the difference in status and treatment need not be substantial – it may be derived from the factual context including inconsistent or dishonest explanations (see Base Childrenswear Ltd v Otshudi 2019 EWCA Civ 1648 CA; Veolia Environmental Services UK v Gumbs EAT 0487/12. 4.41. The presence of discrimination is almost always a matter of inference rather than direct proof – even after the change in the burden of proof, it is still for a Claimant to establish matters from which the presence of discrimination could be inferred, before any burden passes to his or her employer. Public Sector Equality Duty 4.42. Section 149 of the EA 10 states; (1) A public authority must, in the exercise of its functions, have due regard to the need to: (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it. 4.43. Subsection 149(3) explains, “Having due regard for the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to: (a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic; (b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it; (c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.” 4.44. Subsection 149(5) adds, “Having due regard for the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to: (a) tackle prejudice, and (b) promote understanding. 4.45. The relevant protected characteristics include sexual orientation. 5.
Background
[13]Evidence can be provided by various sources e.g. statistics (where available and relevant) or notes from meetings to demonstrate engagement. It should be quantitative and qualitative with clear facts and findings set out and, where relevant, should also include mitigation and any potential for the policy, procedure or practice to effectively reduce or remove perceived or existing inequalities, advance equality of opportunity and foster good relations.[14]Records of the results of Equality Analysis should be kept on the appropriate policy files to be drawn on should these be required at a later date and the fact that analysis has been undertaken and its outcome should be included in the policy document. Whilst TLBs should promulgate their internal governance and quality assurance programmes, a small monitoring group, which includes external expertise, will be established to review a proportion of these forms to assure that they stand up to scrutiny. (557/568) from JSP 887, Diversity, Inclusion and Social Conduct – Defence Strategy and Social Conduct Code to meet Public Sector Equality Duties, Ch 3, Equality Impact Assessment). (557/568). (“TLB” means Top Level Budget.) 3.39. He was still hoping for a resolution with an alternative offer of accommodation. It had been suggested that his remedy could be seeing a second property himself, but that would have been at his own cost. 3.40. He could not proceed with a Service Complaint until the Special to Type procedure had been exhausted and he had been told that this required the stage 2 complaint. There were concerns and a lack of clarity about the stage 2 procedure and he sought advice as to whether it was appropriate to continue with that. 3.41. He still did not have the Equality Impact Assessment on which he sought to rely in relation to his complaint of discrimination. 3.42. He sought the minutes of the APWG meetings (Accommodation Policy Working Group). While they did not cast light on any equality assessment, they disclosed that Wing Commander Elliott-Mabey, now the CO, had been an attender at those meetings in his earlier role. That gave rise to concerns for the Claimant about conflict of interest and the appropriate conversations that he could have with the CO. A difficulty arose too about the specified officer for a service complaint, given that that would usually be the CO. 3.43. He was mindful of the time-limit for Employment Tribunal proceedings, which required that a Service Complaint had been concluded. 3.44. On 10 January 2018, having made no progress, the Claimant started the ACAS conciliation process. 17 January 2018 exchange of emails 3.45. He emailed Wing Commander Elliott-Maybe on 17 January 2018 to update him. The Wing Commander had advised him to consult Lt Richardson. The Claimant explained a lack of response over two months from Lt Richardson, and asked if there was someone else who could advise about the complaints process, to avoid further delay. 3.46. In the course of that email, he explained that had to meet the six-month time limit for the Employment Tribunal, and that he had therefore approached ACAS. He hoped for settlement discussions with the MOD. He was still unclear about how this would work given the requirement for a Service Complaint before embarking on Tribunal proceedings, “Again, an issue that I am awaiting a response from Lt Richardson on. However, if no advice is received and MOD do not settle prior, I will have to proceed to Tribunal to protect the LGBT community from further discrimination.” (67/72) 3.47. The Wing Commander responded the same day. He asked if the Claimant had completed the special to type process as advised. The tone is critical – “I am uncertain why you have not followed the agreed process.” 3.48. He asked whether a discussion with Lt Col Smith had taken place, as advised – “It seems a shame that you have spent the Christmas period working on your thesis of concern when you may have been able to get a better understanding by discussing this more openly.” 3.49. He adds, “It does seem that your own machinations on this matter have been somewhat tardy and that when advice has been given, you have chosen to ignore it” 3.50. That response was copied to five other officers, on the basis that that would progress the complaint. 3.51. He had not discussed his criticisms of the Claimant in that response before that circulation, so had not had the benefit of the detailed rebuttal the Claimant then provided. 3.52. The Claimant immediately recognised that the effect of circulating his own email with its reference to the LGB community, must disclose his own sexual orientation, contrary to his wish or expectations. He spent a sleepless night, deeply anxious. 3.53. Wing Commander Elliott-Mabey says he did not know the Claimant’s sexual orientation and that it was not obvious from the email. In the Claimant’s later Service Complaint and Appeal, the Board and Appeal panel reached the same view: that Wing Commander Elliott-Mabey had not disclosed the Claimant’s sexuality in circulating that email. That is not the Tribunal’s view and this is discussed more fully below. 3.54. In January 2018, the Claimant also followed advice to seek guidance from Navy Legal Direct, only to be told that advice could not be given to individuals (254). February 2018 onwards 3.55. The ACAS certificate was issued on 5 February 2018. 3.56. The Service Complaint was submitted on 8 February 2018 (74/80) 3.57. The Stage 2 Special to Type appeal was submitted on 20 February 2018 (or thereabouts). 3.58. On 1 March 2018, the Employment Tribunal claim was submitted to the Tribunal. Proceedings were stayed by consent to 30 September 2018. 3.59. On 22 March 2018, it was confirmed that the Claimant had technically exhausted the Special to Type process and he could proceed with the Service Complaint. That is reported by the Service Complaints Ombudsman to have been because “the DIO were not in a position and did not have the authority to answer most of the issues raised in his complaint. Lt Col. Smith also stated that the MOD could not insist on the use of the accommodation STT process.” That was because it was not covered in the JSP 464 policy (148/152) 3.60. The Service complaint was ruled admissible on 1 May 2018. 3.61. The first officer appointed as the decision board for the service complaint was appointed in June 2018 but stood down and a new officer was appointed on 17 July 2018. It was determined that a fee-earning harassment investigation officer (“FEHIO”) was to be appointed. That appointment was known to be one subject to delay. The Claimant made a successful undue delay application to The Service Complaints Ombudsmen for the armed forces, upheld with regard to delay in relation to that appointment (145/150 et seq).. 3.62. On 30 July 2018, the Claimant learned of the 2017 Defence Internal Audit (“DIA”) audit into equality analysis and made a Freedom of Information request for details. It showed, as set out in the guidance issued to the Diversity and Inclusion Board, “limited evidence of staff completing an Equality Assessment on their policy, projects and services and that there was a lack of awareness within Department of the legal requirement to do so. It also found that there was a lack of TCB procedure to ensure that equality assessments have been completed.” (128/133). “We recognise that there is more that we need to do to make the EA process as clear and straightforward as possible and to ensure that people are fully aware of their legal obligation to consider how decisions impact differently on groups that share a protected characteristic.” (128/133). 3.63. The MOD sought a further stay of six months of the Employment Tribunal proceedings to enable its determination of the Service Complaint to be completed. The Claimant consented to a stay of 3 months. Time was extended to 3 January 2019. 3.64. In the investigation of the Service Complaint, it was reported to the Investigation Officer that there had been an Equality Impact Assessment of the Accommodation Policy: “Claim is that JSP 464 has not been subject to EA, Paul Brennan (People Accom Policy 2) provided me with evidence that it has.” “Paul Brennan has already confirmed the Accommodation policy has been subjected to an Equality Assessment.” 3.65. The interviewee relied on that for the answer to four out of five questions put. (161/166). 3.66. On 14 December 2018, a new Decision Body was appointed, due to a bereavement (261). 3.67. Also in December 2018, the Initial Investigation Report was produced but held by the MOD to be inadequate. 3.68. On 18 December 2018, the Respondent applied for an extension of the stay. The claimant agreed to a stay to 12 April 2019. 3.69. A different investigator appointed 5 Feb 2019, his report being disclosed on 22 March 2020. 3.70. A further application to the Ombudsman re undue delay and other matters was not upheld. 3.71. On 11 February 2019, the Respondent applied for the stay to be lifted and for the Employment Tribunal Claim to be struck out. That was on the basis that paragraph 18(2) of Schedule 9 of the Equality Act 2010 permitted the discrimination complained of. The history of that application is set out in the Judgment of Employment Judge Midgeley issued on 9 November 2020. 3.72. By further stays, the Employment Tribunal proceedings remained stayed until 15 July 2019. Decision of Decision Body 3.73. On 30 April 2019, the Respondent’s decision body issued its decision letter (249/255). 3.74. It was held that the MOD’s change of policy to limit to one the choice of SSSA accommodation would have a disproportionate effect on the group of Service Personnel who identify as gay (254/276). The Complaint was dismissed in reliance on the exception in para 18(2) of Schedule 9 of the Equality Act 2010. The more favourable treatment of those with children was not separately considered. 3.75. The MOD was not exonerated; for example, “The evidence supports your contention that the MOD does not appear to have considered the impact of SSSA policy changes on gay Service Personnel; there is no up to date EA of JSP 464, and very little mention of equality issues in the records of the APWG or in related policy making discussions. Moreover, MOD record keeping in this regard is poor and there is strong evidence that MOD Accommodation Policy staffs sought to obfuscate and or avoid addressing these equality issues when you first raised them in 5 July 2017.” (270/277) 3.76. The following paragraphs are from the earlier judgment at paragraphs 3.59 to 3.64. “A number of failings were recognised,• The MOD failed in its statutory duty to conduct an Equality Assessment of the change to its revised SSSA Accommodation Policy• The MOD failed to comply with MOD policy that required an Equality Impact Assessment on the change to SSSA policy• The MOD failed in its statutory Public Sector Equality Duty, under section 149 of the Equality Act 2010, to consider the impact on equality of the changes to SSSA policy and in failing to consider how to meet the needs of protected groups and increase their participation in public life• The failure to consult with under-represented groups in the development of accommodation policy likely contributed to the failure of the MOD to have due regard for equality matters in recent changes to JSP 464. 3.77. There were apologies for those and for failures of governance and in relation to the complaints processes. MOD processes were held to be flawed with inadequate record keeping, inadequate training and awareness of Equality Assessments and it was held that it had become normal practice to fail to conduct Equality Assessments of the accommodation policy JSP 464. 3.78. There were a substantial number of recommendations, They are set out here because they are sound and should not be forgotten: the decision on Appeal wholly replaces that of the Decision Body, but the Appeal Body approved and adopted the Decision Body’s evaluation and summary of the evidence (328/334). Given that slightly confusing position, the careful thought put into that decision risks being lost. They include that,• An EA (Equality Assessment) of the revised policy to reduce to one the number of choices of SSSA accommodation is subject to an EA within 20 working days• The MOD develops a prioritised action plan, with clearly defined timelines, for the conduct of Equality Impact Assessments on all its policies, within 3 calendar months• The MOD conducts a cultural analysis of its approach to its statutory duties and policy defined procedures, for the handling of diversity and inclusion matters in its policy making and complaints handling• The MOD conducts a training needs analysis to identify any training required for staff who conduct Equality Impact Assessments• The MOD set in place, within 6 months of this notification, any necessary training required to support statutory and policy compliance with the Public Sector Equality Duty defined in the Equality Act 2010 and the MOD's Diversity and Inclusion Strategy in JSP 887• The MOD conducts Equality Impact Assessments on all its policies within 12 months of this notification, ensuring meaningful engagement with the relevant representative groups for all the protected characteristics• The MOD sets in place procedures that ensure the conduct, assurance and reporting of all necessary periodic Equality Impact Assessments across the Department, required to meet the MOD's obligations in statute and policy.• The MOD reviews its record taking and keeping procedures and requirements to appropriately support diversity and inclusion matters across Defence and sets in place appropriate policy and procedures within 6 months• The MOD reviews and identifies how best to publish its Equality Act work, along with the supporting evidence, whenever possible 3.79. Others related to the handling of complaints and freedom of information procedures, with regular review and reporting on progress. 3.80. In relation to the applications the Claimant had made during the period from August 2017 to January 2018 for disclosure of the Equality Impact Assessment, supporting evidence for it and for later Equality Act consideration, the Decision sets out that there had been inappropriate reliance on an unnecessary FOI process which incurred unnecessary time and cost, and, “the release of incorrect and incomplete information under the FOI process incurred further time and effort on your part.” (264/270). 3.81. There were a significant number of apologies to the claimant, including for the failure to conduct an Equality Impact Assessment in respect of the Accommodation Policy and in relation to the reduction in offers to on, under the revised SSSA Accommodation policy (para 40 286/293); the failure to deliver complete information under the FO! Regime; the failure to meet the Public Sector Equality Duty and to consider how to increase participation of protected groups in public life and in relation to the Complaints process. Appeal 3.82. On 17 June 2019, the Claimant appealed. 3.83. In his appeal he included a detailed and informed submission that the exemption relied on by the Respondent was incompatible with EU law and could not apply (303 – 306/312). 3.84. Before his appeal, he was asked for consent for the case file to be disclosed to the appeal body members but did not give it – he had objected to two of the proposed panel (291/297). The appeal proceeded in spite of that. The SCT (Service Complaint Team) later advised that they believed that they had a basis to process his data, but have not explained what that was. His data was released without consent when consent had been explicitly requested. 3.85. On 3 July 2019, the Appeal Body dismissed the appeal (321/327) save with regard to failures to carry out an Equality Act Assessment and to adhere to the Public Sector Equality Duty. 3.86. There was no hearing or invitation to a hearing (321). The claim of indirect discrimination was dismissed, again relying on the exemption (336). 3.87. The Claimant was criticised for delays. 3.88. In addressing the disclosure of 17 January 2018, the Appeal Body did not accept disclosure of the Claimant’s sexual orientation: it was said to be “quite a leap from referring to “protecting the LGBT Community” to this being an interpretation as a revelation of the Complainant’s sexual orientation, when there are many personnel within the service who are LBGT Champions but are not part of the “LBGT Community”. 3.89. Three relevant recommendations were made; that the reduction in choices of SSSA from two to one be subject to an Equality Impact Assessment; that greater engagement be undertaken with underrepresented groups when creating, changing or formulating Policy and that the MOD review their compliance with the Public Sector Equality Duty in line with their own Diversity and Inclusion Strategy. 3.90. On 15 July 2019, the claimant raised in his Employment Tribunal claim the argument that the exemption in para 18(2) was incompatible with the European Convention on Human Rights. 3.91. 31 July 2019, the Claimant applied for an anonymity order. The Respondent resisted that application which went to a hearing alongside the application for strike-out. March 2020 – disclosure 3.92. On 3 February 2020 the Restricted Reporting Order was promulgated. 3.93. On 3 March 2020, the Claimant’s identity and sexual orientation were included in material posted to a digital calendar. 3.94. The Respondent had made application to the Tribunal to vary an Order. The application mentioned the intention to hold a tri-service meeting. The meeting was posted on MODnet outlook calendars. It identified the Claimant by name, not using “XA” and the body of the email indicated his sexual orientation with further instances of identification (365/371). The meeting invitation was not marked as private. 3.95. The Claimant complained on 4 March 2020 to Mr Valentine, solicitor for the Respondent, pointing out that the effect was to disclose to any of the 200,000 individuals with access to the MODnet his identity and his sexual orientation, sensitive personal data to which enhanced safeguards should apply independently of the Restricted Reporting Order made (372/378). 3.96. The incident was then reported as a security incident by the officer who had posted the details. That report indicates that the Claimant’s name was removed and the meeting marked as private, with the invitation amended on 4 March 2020. 3.97. The Claimant did not get a response or an outcome to his complaint. He had drafted a proposed letter giving guidance to colleagues with reference to the Restricted Reporting Order pointing out inappropriately shared information should not be used and an apology to himself but it was not used (375). 3.98. Not long after that there was a further breach, again a failure to properly protect information in a Microsoft calendar invitation and again it gave away his identity and sensitive details of the case. The Claimant reported the repeated breach to the Secretary of State for Defence and received an angry response. 3.99. In May 2021 he was moved away from Bristol and posted overseas. 3.100. He is now advised that he will be in the UK for his next posting, in some months’ time. Promotion and Performance 3.101. The Claimant has impressive assessment reports (“OJARS”). They show him to be intelligent, highly skilled, competent, resourceful and dedicated. 3.102. He has done less well in each promotion board between 2019 and 2021, going from grade B+ to B to C. FAM 3.103. Future accommodation policy is being developed under the Future Accommodation Model (“FAM”) which in essence will give personnel greater choice, with limitations, on whether to occupy accommodation within the MOD estate or the private sector. If rolled out, it would render the current model for SSSA and SSFA obsolete. Single personnel would still be able to live in SLA but could receive financial support to rent (either on their own or with friends) or to buy a home. It is also intended that FAM would widen family entitlement beyond those who are married or in civil partnerships by enabling (for example) those in established and registered long-term relationships and divorced parents with shared custody of children with access to subsidised accommodation in the private rental market. It recognises divergence from traditional family models. Roll out may be in 2023 if government level approvals are given. It has not yet been subject to an equality impact assessment (JB ws). 3.104. In the meantime, the arrangements that were found to be indirectly discriminatory remain in place and are highly likely to be in place when XA next seeks SSSA. 4. LAW , Discrimination Remedy 4.1. Section 124 of the Equality Act 2010 (“EA 2010”) provides by way of remedy for discrimination, a declaration, as given in making the initial judgment, financial compensation and scope to make recommendations. Recommendations 4.2. The Tribunal may, under section 124 of the EA 2010, may a declaration as to the rights of the claimant and the respondent in relation to the matters to which the proceedings relate and may make an appropriate recommendation. 4.3. An appropriate recommendation is a recommendation that within a specified period the respondent takes specified steps for the purpose of obviating or reducing the adverse effect on the complainant of any matter to which the proceedings relate” (s124(3)). 4.4. The Tribunal has to consider practicability, both from what is practicable in terms of the effect on the complainant and also from the perspective of the employer (Lycee Francais Charles De Gaulle v Delambre UKEAT/0563/10 [2011] EqLR 948 and Fasuyi v London Borough of Greenwich UKEAT/1078/99) (“Fasuyi”). 4.5. In Fasuyi, HHJ McMullen QC confirmed that a recommendation which is generally ameliorative, that is applying across the board, may be justified if the effect of it will obviate or reduce the adverse effect of discrimination on the complainant, who is a person within the general application (para 24). 4.6. A recommendation can include in principle one that requires the Respondent to give undertakings. If so, there should be a time limit, a requirement that it should be in writing and it should be specific as to what was to be done as well as consideration as to practicability. As to enforcement under section 124(7), that would only apply if the Respondent refused to give the undertaking, not if the undertaking were later breached. An undertaking that in certain circumstances the claimant should be treated as redundant was upheld in the case of Hill v Lloyds Bank plc ([2020] UKEAT/0173/19) in the context of reasonable adjustments for disability, with the explanation that giving special benefits is inherent in the whole reasonable adjustments disability discrimination scheme. Indirect Discrimination and compensation 4.7. An order for monetary compensation is only made where it is just and equitable to do so. 4.8. Where the Tribunal has found indirect discrimination, and where the tribunal is satisfied that the provision, criteria or practice was not applied with the intention of discriminating against the claimant, the Tribunal must consider making either a declaration or a recommendation before it awards compensation (sections 124(4) and (5)). There is no bar on an award of compensation provided that the Tribunal gives the required consideration to declaration or recommendation (Wisbey V Commissioner of the City of London Police and another [2021] IRLR 691). 4.9. Intention may be inferred where it is established that the employer was aware that discriminatory consequences would flow from its actions (JH Walker Ltd v Hussain [1996] IRLR 11). The real consideration is whether it is just to award a declaration or recommendation in cases where the employer did not realise that the PCP would unjustifiably put persons with the claimant’s protected characteristic at a particular disadvantage. 4.10. The issue in relation to intention is not the generalised intention relating to the introduction of the arrangements that have been shown to be discriminatory but the intention with which the requirement or condition was applied (London Underground Ltd v Edwards [1995] IRLR 355). The question therefore is whether the Respondent had knowledge of the unfavourable consequences for the claimant from which intention can be inferred. Financial Loss 4.11. The measure of damages is the same as it would be in a civil court in tort – that is, the assessment of damages is not simply what is just and equitable. There is no upper limit on what can be awarded. The question is what would be the position of the Claimant if the statutory tort of indirect discrimination had not been committed against him. 4.12. Where compensation is awarded, it is on the basis that “as best as money can do it, the claimant must be put into the position she would have been in but for the unlawful conduct of [the] employer”' (Ministry of Defence v Cannock [1994] IRLR 509, EAT, per Morison J at 517, [1994] ICR 918, EAT). 4.13. Losses must be attributable to the specific acts of discrimination found by the Tribunal based on the pleaded claim. So long as the losses claimed can be causally linked with the unlawful act, the respondent must meet them, 4.14. Causation is a factual issue of whether the damage would have occurred “but for” the wrongful act, whereas questions of remoteness involve a value judgment as to what was “direct” or “natural” or “foreseeable” as a consequence. (Bullimore v Pothecary Witham Weld (No 2) [2011] IRLR 18 EAT) but the test of reasonable foreseeability does not apply to limit the liability (Essa v Laing Ltd [2004] EWCA Civ 02[2004] IRLR 313). 4.15. Heads of damages include pecuniary losses, that is, personal financial losses, and non-pecuniary losses, such as injury to feelings and in some cases personal injury. Financial losses include loss of earnings and benefits derived from the employment. Where failure to mitigate is demonstrated, a deduction can be made in respect of earnings that were not but should have been achieved. 4.16. The task is to put the employee in the position he or she would have been in had there been no discrimination. The fact that there has been a discriminatory dismissal may mean that the employee is on the labour market at a time and in circumstances which are not of his own choosing. It does not follow therefore that their prospects of obtaining a new job are the same as they would have been had he or she stayed where they were. In addition, there may be stigma by reason of taking proceedings, and that may have some effect on the chances of obtaining future employment. (Chagger v Abbey National plc & anor [2009] EWCA Civ 1202 (“Chagger”) Vento v Chief Constable of West Yorkshire Police (No 2) [2003] IRLR 102, [2003] ICR 318 (“Vento”)). 4.17. When an act of discrimination results in the loss of employment, for example, or promotion, a tribunal will have to calculate future loss, and in so doing have to make decisions about the chances that the employment would have continued or that the claimant would have been promoted had the discrimination not taken place. It is important that this is done by reference to calculating the percentage probabilities, and not on a simple balance of probabilities (Chagger). The assessment must be made by focusing on the degree of chance and not on a balance of probabilities approach; in other words, it would be wrong to conclude that something was more likely than not to have happened and then to deem it to have happened rather than considering the chance of it happening and applying a percentage factor to reflect that chance (Chagger). Injury to Feelings 4.18. Injury to feelings awards are compensatory and should be just to both parties. The matters compensated encompass subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress and depression (Vento). Feelings of indignation at the discriminator’s conduct should not be allowed to inflate the award. Tribunals should remind themselves of the value in everyday life of the sum proposed (HM Prison Service v Johnson [1997] IRLR 162). 4.19. Allowing a grievance procedure to drag on for 14 months was held to be a factor that a tribunal could take into account in awarding damages for injury to feelings (British Telecommunications plc v Reid [2003] EWCA Viv 1675, 2004 IRLR 327). 4.20. The Vento case is the source of guidance on the level of compensation for injury to feelings which have since been updated. They identify three broad bands of compensation for injury to feelings as distinct from psychiatric or personal injury, but Tribunals should have regard to the Judicial College Guidelines on psychiatric personal injury when determining the appropriate injury to feelings award. 4.21. This claim was brought on 1 March 2018. Applying the guidance issued by the Presidents of the Employment Tribunals in respect of claims issued after 11 September 2017, the lower band is for less serious acts of discrimination. Awards in this band are currently between £800 - £8400. 4.22. The middle band is for cases which are more serious but do not come into the top band. These awards tend to be from £8,400 to £25,200. 4.23. The top band is for the most serious cases such as where there has been a lengthy campaign of harassment. These awards are between £25,200 and £42,000, but are relatively rare. 4.24. A case would have to be highly exceptional for any sum higher than this to be awarded. Public Sector Equality Duty 4.25. The Public Sector Equality Duty is a key element of the Equality Act 2020, intended to ensure that public authorities actively pursue equality objectives in exercising their functions. It is mandatory and it may not be delegated. 4.26. Section 149 of the EA 10 states; (1) A public authority must, in the exercise of its functions, have due regard to the need to: (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it. 4.27. Subsection 149(3) explains, “Having due regard for the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to: (a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic; (b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it; (c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.” 4.28. Subsection 149(5) adds, “Having due regard for the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to: (a) tackle prejudice, and (b) promote understanding. 4.29. The relevant protected characteristics include sexual orientation. 4.30. It requires a more positive, proactive approach than just avoiding discriminating. 4.31. Breach of section 149 Equality Act does not confer a claim in itself. 4.32. Technical Guidance published pursuant to section 13 2006 EA, by E and HRC, sets out how public authorities should comply with the duty. It can be used as evidence in legal proceedings. A public authority that has failed to follow its guidance will need to explain its reasons (paras 1.4 and 1.5) 4.33. In G v Head Teacher and Governors of St Gregory’s Catholic Science College 2011 EWHC 1452, QBD, (“G”) Mr Justice Collins, giving the judgment of the High Court, noted that the purpose of the duty is “to require public bodies to whom it applies to give advance consideration to issues of race discrimination before making any policy decision that may be affected by them”. He quoted Lady Justice Arden in R (on the application of Elias) v S of S for Defence 2006 IRLR 934 CA (“Elias”) speaking of the race equality duty then in place under section 71 RRA as “an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation” Aggravated Damages 4.34. Aggravated damages may be awarded in particularly serious cases of discrimination. The principles were laid down in Alexander v The Home Office [1988] ICR 685 and in Kuddus v Chief Constable of Leicestershire Constabulary [2001] UKHL 29, [2001], 3 All ER 193. They are compensatory only and should not be awarded to punish the respondent. They may be awarded where the complainant is able to establish a causal link between “a high-handed, malicious, insulting, or oppressive manner in committing the act of discrimination” on the employer’s part and the injury to feelings suffered (Alexander). 4.35. They are seen as part of injury to feelings but while a separate award is to be made, Tribunals should avoid compensating claimants under both heads for the same loss. 4.36. In HM Prison Service v Salmon 2001 IRLR 425 EAT, it is said that, “Aggravated damages are awarded only on the basis and to the extent that the aggravating features have increased the impact of the discriminatory act or conduct on the applicant and thus the injury to his or her feelings” 4.37. Exceptionally, damages are available for the manner of conducting the tribunal proceedings where that aggravates the harm caused by the original act of discrimination. In that case it was inappropriate and monumental effort put into the defense of the proceedings in a manner deliberately designed to be intimidatory and cause the maximum unease and distress to the claimant (Zaiwalla and Co and anor v Walia 2002 IRLR 697 EAT). 4.38. The EAT in that case thought there was a very good public policy reason for allowing a claim for aggravated damages in an appropriate discrimination case, since the alternative would be for the claimant to bring further proceedings for victimisation increasing the tribunals’ already considerable workload. It is preferable for the tribunal hearing the case to assess the seriousness of the misconduct and its effect. 4.39. There must be some causal link between the conduct and the damage suffered: high-handed conduct on its own is not enough to lead to an award of aggravated damages. The ultimate question according to the then President of the EAT, Mr Justice Underhill, in Commissioner of Police of the Metropolis v Shaw [2012] ICR 464 EAT is whether the overall award is proportionate to the totality of the claimant’s suffering. It is an aspect of injury to feelings reflecting the making more serious the injury to feelings by some additional element which would fall into one of three categories, (a) the manner in which the wrong was committed, that is, where it is done in an exceptionally upsetting way – high-handed, malicious, insulting or oppressive way (b) bad motive, provided that the claimant was aware of it , for example conduct based on, prejudice, animosity spite or vindictiveness is likely to cause more distress (c) Subsequent conduct, such as where the defence is conducted at a trial in an unnecessarily offensive manner, a serious complaint is not taken seriously, where there is a failure to apologise, or the respondent has defended in a way that is wholly inappropriate and intimidatory. 4.40. The actions are not required of themselves to be discriminatory. 4.41. Tribunals must be wary of focusing on the quality of the respondent’s conduct – that is, assuming that the more heinous the conduct, the more devastating its impact on the claimant. Tribunals must not lose sight of the ultimate purpose of aggravated damages, which is to compensate for the additional distress caused to the claimant by the aggravating features in question. The award must overall be fair and proportionate, in respect of non-pecuniary loss (Ministry of Defence v Fletcher [2010] IRLR 25 EAT, “Fletcher”, to which we are referred). 4.42. Maladministration alone does not itself justify the award of aggravated or exemplary damages, in the absence of aggravating factors such as the lack of good faith, the targeting of the claimant personally, malice or a campaign of deliberate humiliation (see Elias, above). Exemplary damages 4.43. The availability of exemplary damages in discrimination cases was confirmed in Kuddus (above), a case of alleged misfeasance in public office, and again in Fletcher (above). They are punitive, not compensatory. Again, the risk of double recovery must be avoided. 4.44. There are two categories of case where exemplary damages may be awarded: i) Where there is oppressive, arbitrary or unconstitutional action by servants of the Government, for example, where the conduct an officer of a public body with sufficient seniority is conscious and contumelious. ii) Where the guilty party’s conduct was calculated to profit beyond the level of any compensation payable to the claimant (Rookes v Barnard [1964] 1 All ER 367) ACAS Code of Practice 4.45. The ACAS Code establishes “basic practical guidance to employers and employees and their representatives and sets out principles for handling disciplinary and grievance situations in the workplace.” 4.46. The Code sets out that issues should be dealt with promptly and consistently and be investigated to establish the facts. Employees should have the opportunity to put their case, to be accompanied in any formal disciplinary or grievance meeting and have the right to appeal. 4.47. The ACAS Code is made under section 199 of Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”). Breach of the ACAS Code brings penalties under section 207A of TULRCA. The award is the just and equitable amount up to 25%. The breach of the Code of Practice must be identified. 4.48. Section 273 of TULRCA applies its provisions to Crown employment but section 274 provides that section 273 does not apply to service as a member of the armed forces, as more fully discussed below. Interest 4.49. A tribunal may award interest on awards of compensation made in discrimination claims brought under s124(2)(b) EA 2010, to compensate for the fact that compensation has been awarded after the relevant loss has been suffered (see s139 EA 2010, EA 2010 (Commencement No 4 etc) Order SI 2010/2317 and Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996. 4.50. The tribunal may award interest to the following types of discrimination award: ● Past financial loss; ● Injury to feelings; ● Aggravated and exemplary damages; and ● Physical and psychiatric injury. 4.51. Interest is calculated as simple interest. The current statutory rate is 8%. (1/365 or 0.00273973 per day). The period of accrual of interest in injury to feelings runs from the act of discrimination to the hearing. For other sums it is from the mid-point of the period since the act of discrimination. 4.52. Awards for injury to feelings unrelated to termination of employment are taxfree. Penalty 4.53. Under S12A ETA 1996, where the employer has breached any of the worker’s rights and it is of the opinion that the breach has “one or more aggravating features”, the Tribunal may award a penalty, payable to the Secretary of State. According to the explanatory notes, the Tribunal may consider the size of the employer, the duration of the breach, the behaviour of the employer and employee as well as whether the action was deliberate or committed with malice, whether the employer was an organisation with a dedicated human resources team or the employer had repeatedly breached the employment right concerned. 5. Submissions 5.1. The Tribunal had the benefit of helpful written submissions, supplemented by short oral submissions and a joint bundle of authorities. Those were considered and referred to here without summarising them. 5.2. Regrettably, submissions in relation to the application of the ACAS Code, although sent in on 15 September did not reach the Tribunal until some days later, after Judgment had been given. The issue of the Judgment and Reasons were delayed to allow those submissions to be addressed. They are dealt with below. 6.