Mr. D. MabasoClaimantMinistry of DefenceRespondent
Before
Employment Judge J. Galbraith-MartenIn person for claimantMr. R. McLean (instructed by Counsel) for respondentDate 31 January 2025
REASONS
[1]This was an open preliminary hearing held by video. The respondent produced a 185-page bundle including authorities. The claimant had access to the bundle on his mobile phone, a hard copy was supplied to the claimant but was not received. The respondent produced written submissions, and the claimant relied on oral submissions.[2]The claimant experienced connection problems when the Judgment was delivered so these written reasons are provided.
Background
[3]The Tribunal did not hear evidence in this matter so makes no findings of fact. The following is a summary of the factual background.[4]The claim form was presented on 3 April 2024, and early conciliation took place between 25 January 2024 and 7 March 2024.[5]The claimant served as a member of the Royal Airforce Auxiliary in 2004 & 2005. He turned 55 on 21 January 2024.[6]The claimant presented an application to join the Royal Airforce Auxiliary Reserves in 2021 but that was rejected on medical grounds. He presented another application to join the reserves in September 2023. An applicant for the reserves must attest before their 55th birthday.[7]The claimant sat two defence aptitude assessments on 13 September 2023 and 9 November 2023. He took two tests as he had a preferred role in mind.[8]The claimant has dyslexia and asserts that he is a disabled person for the purposes of s.6 Equality Act 2010. He complains that no reasonable adjustments were made to accommodate his dyslexia regarding the 13 September 2023 test. It was conducted on a small tablet and the claimant required a larger screen.[9]In the second test on 9 November 2023 the claimant scored one mark below the pass mark. The respondent accepts there was an issue with the pens provided during that test as they ran out of ink. In the circumstances, and as the claimant was one mark away from passing the test, the respondent’s recruiter was willing to provide the claimant with a defence aptitude assessment waiver so that he could proceed with his application.[10]In addition to that waiver, the claimant was also required to complete and pass an interview, a medical, a pre-joining fitness test and gain an education waiver in respect of his GCSE results prior to his 55th birthday. The claimant also required an age waiver from the respondent given the proximity to his 55th birthday (21 January 2024).[11]Given the various requirements the claimant needed to complete, the respondent’s relevant squadron leader did not believe the claimant would be able to complete all the elements before his 55th birthday. Therefore, the respondent rejected the claimant’s application.[12]The claimant complains of direct age and race discrimination. He asserts the respondent deliberately delayed processing his application so that he reached the age of 55 and therefore could not attest to the reserves. The claimant also complains the respondent did not make reasonable adjustments to the 13 September 2023 defence aptitude assessment.
Issues
[13]The issues the Tribunal had to decide were as follows:(1) whether the complaints of age and disability discrimination should be struck out under rule 37 of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013, Schedule 1 in view of the exception set out at paragraph 4(3) of Schedule 9, of the Equality Act 2010 under the power provided in section 83(11).(2) whether any of the complaints or allegations should be struck out under rule 37 because they have no reasonable prospect of success.(3) whether any of the complaints or allegations should be made subject to a deposit order under rule 39, because they have little reasonable prospect of success.(4) case management in the event that any part of the claim remains. The Law Equality Act 2010
The Law
[14]Part 5 of the Equality Act 2010 relates to work and Section 39 is relevant to employees and applicants. It provides: Section 39: Employees and applicants (1) An employer (A) must not discriminate against a person (B) – (a) in the arrangements A makes for deciding to whom to offer employment; (b) as to the terms on which A offers B employment; (c) by not offering B employment.[15]Section 83(3) of the Equality Act 2010 states that Part 5 applies to the armed forces subject to any exception: Section 83 Interpretation and exceptions 83(3) This part applies to service in the armed forces as it applies to employment by a private person;[16]Section 83(11) of the Equality Act 2010 refers to the exceptions provided in Schedule 9 of the Equality Act 2010 that relate to work. The armed forces are included in schedule 9 at paragraph 4 which states: Schedule 9, paragraph 4(3): Armed forces(1) A person does not contravene section 39(1)(a) or (c) or (2)(b) by applying in relation to service in the armed forces a relevant requirement if the person shows that the application is a proportionate means of ensuring the combat effectiveness of the armed forces.(2) A relevant requirement is— (a) a requirement to be a man; (b) a requirement not to be a transsexual person.(3) This Part of this Act, so far as relating to age or disability, does not apply to service in the armed forces; and section 55, so far as relating to disability, does not apply to work experience in the armed forces[17]The Equality Act 2010 explanatory notes regarding Schedule 9, paragraph 4(3) state: 798.It also exempts the armed forces from the work provisions of the Act relating to disability and age. Background 799.This paragraph replicates the effects of exemptions for the armed forces in previous legislation but narrows the scope of the former combat effectiveness exception so that this applies only to direct discrimination in relation to recruitment and access to training, promotion and transfer opportunities. Example• Only ground close-combat roles requiring Service personnel to deliberately close with and kill the enemy face-to-face are confined to men. Women and transsexual people are, therefore, currently excluded from the Royal Marines General Service, the Household Cavalry and Royal Armoured Corps, the Infantry and the Royal Air Force Regiment only. Framework Directive
Background
[18]Council Directive 2000/78/EC establishes a general framework for equal treatment in employment and occupation and recital 19 provides: “Moreover, in order that the Member States may continue to safeguard the combat effectiveness of their armed forces, they may choose not to apply the provisions of this Directive concerning disability and age to all or part of their armed forces. The Member States which make that choice must define the scope of that derogation”.[19]The scope of the Framework Directive is set out at article 3(4) which states: “Member States may provide that the Directive, insofar as it relates to discrimination on the grounds of disability and age, shall not apply to the armed forces”. Human Rights Act 1998[20]The Human Rights Act 1998 section 3 regarding the interpretation of legislation provides: 3. Interpretation of legislation(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.(2) This section— (a) applies to primary legislation and subordinate legislation whenever enacted; (b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and (c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.[21]Schedule 1 of the Human Rights Act 1998 includes the rights and freedoms provided by the European Convention on Human Rights and this includes: Article 8 Right to respect for private and family life 1. Everyone has the right to respect for his private and family life, his home and his correspondence. Article 14 Prohibition of discrimination The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.[22]The respondent referred to the authority of R (Child Soldiers International) v Secretary of State for Defence [2016] 1 WLR 1062 in which the High Court upheld the lawfulness of the age exception in relation to the armed forces. The Tribunal was specifically referred to the following comments from Kenneth Parker J; 9. My first task is to decide what article 3(4) means. In my view, the meaning cannot be plainer. Member states are unambiguously given an unqualified and unrestricted power not to apply the Directive to the armed forces. In particular, article 3(4), to the extent that it is applied by national law, does not legally require a member state to consider, before enacting any provision in respect of the armed forces into national law that would, or might, have the effect of discriminating by reason of age, whether the enactment of such a provision is justified, and proportionately justified, by any clear and legitimate objective. The Community legislator could no doubt have included within article 3(4) such a legal requirement, specifying for the armed forces what would count as such a clear and legitimate objective, and in that even any national measure that would, or might, discriminate by reason of age would be justified only in so far as it (under the general principle of EU law) proportionately advanced such an objective. But the legislator has not chosen to do so. 10. The corollary, of course, is that there is no room for the national judge to review any such measure, taken within the scope of the unqualified and unrestricted derogating power and to assess whether it is proportionately justified by reason of some unspecified putative legitimate objective… 44. In my judgment, Parliament has plainly exercised the power granted by article 3(4) of the Directive to derogate from the general prohibitions in the Directive. Consistently with recital (19), the UK has “defined the scope of derogation”, because the exception in paragraph 4(3) of Schedule 9 extends in terms to all units of the armed forces…and to all functions of the armed forces. … 48. …There is no scope for this court to examine the “proportionality” of the challenged Regulations, and it appears to me to be inconsistent with the intention of the legislation if I were to do so…[23]This is retained law under the terms of the European Union (Withdrawal Act) 2018.[24]The respondent also referred to Ghaidan v Godin – Mendoza [2004] AC 557 regarding the extent of statutory interpretation. The Tribunal was referred to passages from Lord Nicholls, Lord Steyn and Lord Roger. Per Lord Nicholls:-[26]Section 3 is a key section in the Human Rights Act 1998. It is one of the primary means by which Convention rights are brought into the law of this country. Parliament has decreed that all legislation, existing and future, shall be interpreted in a particular way. All legislation must be read and given effect to in a way which is compatible with the Convention rights "so far as it is possible to do so". This is the intention of Parliament, expressed in section 3, and the courts must give effect to this intention. ...[30]From this it follows that the interpretative obligation decreed by section 3 is of an unusual and far-reaching character. Section 3 may require a court to depart from the unambiguous meaning the legislation would otherwise bear. In the ordinary course the interpretation of legislation involves seeking the intention reasonably to be attributed to Parliament in using the language in question. Section 3 may require the court to depart from this legislative intention, that is, depart from the intention of the Parliament which enacted the legislation. ...31. ... once it is accepted that section 3 may require legislation to bear a meaning which departs from the unambiguous meaning the legislation would otherwise bear, it becomes impossible to suppose Parliament intended that the operation of section 3 should depend critically upon the particular form of words adopted by the parliamentary draftsman in the statutory provision under consideration. That would make the application of section 3 something of a semantic lottery. If the draftsman chose to express the concept being enacted in one form of words, section 3 would be available to achieve Convention- compliance. If he chose a different form of words, section 3 would be impotent.32. ...Section 3 ... is also apt to require a court to read in words which change the meaning of the enacted legislation, so as to make it Convention-compliant. In other words, the intention of Parliament in enacting section 3 was that, to an extent bounded only by what is "possible", a court can modify the meaning, and hence the effect, of primary and secondary legislation.[33]Parliament, however, cannot have intended that in the discharge of this extended interpretative function the courts should adopt a meaning inconsistent with a fundamental feature of legislation. That would be to cross the constitutional boundary section 3 seeks to demarcate and preserve. Parliament has retained the right to enact legislation in terms which are not Convention- compliant. The meaning imported by application of section 3 must be compatible with the underlying thrust of the legislation being construed. Words implied must, in the phrase of my noble and learned friend, Lord Rodger of Earlsferry, "go with the grain of the legislation". Nor can Parliament have intended that section 3 should require courts to make decisions for which they are not equipped. There may be several ways of making a provision Conventioncompliant, and the choice may involve issues calling for legislative deliberation. Per Lord Steyn: 50. Having had the opportunity to reconsider the matter in some depth, I am not disposed to try to formulate precise rules about where section 3 may not be used. Like the proverbial elephant such a case ought generally to be easily identifiable. What is necessary, however, is to emphasise that interpretation under section 3(1) is the prime remedial remedy and that resort to section 4 must always be an exceptional course. In practical effect there is a strong rebuttable presumption in favour of an interpretation consistent with Convention rights. Per Lord Rodger:123. Attaching decisive importance to the precise adjustments required to the language of any particular provision would reduce the exercise envisaged by section 3(1) to a game where the outcome would depend in part on the particular turn of phrase chosen by the draftsman and in part on the skill of the court in devising brief formulae to make the provision compatible with Convention rights. ... Parliament was not out to devise an entertaining parlour game for lawyers, but, so far as possible, to make legislation operate compatibly with Convention rights. This means concentrating on matters of substance, rather than on matters of mere language.124. Sometimes it may be possible to isolate a particular phrase which causes the difficulty and to read in words that modify it so as to remove the incompatibility. Or else the court may read in words that qualify the provision as a whole. At other times the appropriate solution may be to read down the provision so that it falls to be given effect in a way that is compatible with the Convention rights in question. In other cases the easiest solution may be to put the offending part of the provision into different words which convey the meaning that will be compatible with those rights. The preferred technique will depend on the particular provision and also, in reality, on the person doing the interpreting. This does not matter since they are simply different means of achieving the same substantive result. However, precisely because section 3(1) is to be operated by many others besides the courts, and because it is concerned with interpreting and not with amending the offending provision, it respectfully seems to me that it would be going too far to insist that those using the section to interpret legislation should match the standards to be expected of a parliamentary draftsman amending the provision: cf R v Lambert [2002] 2 AC 545, 585, para 80, per Lord Hope of Craighead. It is enough that the interpretation placed on the provision should be clear, however it may be expressed and whatever the precise means adopted to achieve it. Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013, Schedule 1(The Rules) 25. In accordance with Rule 37 a claim or a response (or a part of) may be struck out on the following grounds.[37]Striking out(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— (a)that it is scandalous or vexatious or has no reasonable prospect of success; (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c) for non-compliance with any of these Rules or with an order of the Tribunal; (d) that it has not been actively pursued; (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out).(2) A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.(3) Where a response is struck out, the effect shall be as if no response had been presented, as set out in rule 21 above. 26. The Tribunal must first decide whether one of the grounds identified in Rule 37 is made out and if so whether to exercise its discretion to order strike out as confirmed in Hasan v Tesco Stores Ltd EAT0098/16. In exercising discretion Tribunals must have regard to the overriding objective to deal with cases fairly and justly. 27. In Mbuisa v Cygnet Healthcare Ltd EAT 119/18 the Employment Appeal Tribunal held that strike out is a draconian step and should only be taken in exceptional circumstances. This may include circumstances when the facts of the case are demonstrably untrue. 28. In Anyanwu and anor v South Bank Student Union and another 2001 ICR 391, HL, the House of Lords stressed the importance of not striking out discrimination claims save for in the most obvious of cases. 29. In Cox v Adecco Group Uk & Ireland and ors 2021 ICR 1307, EAT the Employment Appeal Tribunal provided guidance for Tribunals in relation to strike out applications involving litigants in person. His Honour Judge James Taylor provided the following guidance. 28. From these cases a number of general propositions emerge, some generally well- understood, some not so much: (1) No-one gains by truly hopeless cases being pursued to a hearing; (2) Strike out is not prohibited in discrimination or whistleblowing cases; but especial care must be taken in such cases as it is very rarely appropriate; (3) If the question of whether a claim has reasonable prospect of success turns on factual issues that are disputed, it is highly unlikely that strike out will be appropriate;(4) The Claimant's case must ordinarily be taken at its highest;(5) It is necessary to consider, in reasonable detail, what the claims and issues are. Put bluntly, you can't decide whether a claim has reasonable prospects of success if you don't know what it is;(6) This does not necessarily require the agreement of a formal list of issues, although that may assist greatly, but does require a fair assessment of the claims and issues on the basis of the pleadings and any other documents in which the claimant seeks to set out the claim;(7) In the case of a litigant in person, the claim should not be ascertained only by requiring the claimant to explain it while under the stresses of a hearing; reasonable care must be taken to read the pleadings (including additional information) and any key documents in which the claimant sets out the case. When pushed by a judge to explain the claim, a litigant in person may become like a rabbit in the headlights and fail to explain the case they have set out in writing;(8) Respondents, particularly if legally represented, in accordance with their duties to assist the tribunal to comply with the overriding objective and not to take procedural advantage of litigants in person, should assist the tribunal to identify the documents in which the claim is set out, even if it may not be explicitly pleaded in a manner that would be expected of a lawyer;(9) If the claim would have reasonable prospects of success had it been properly pleaded, consideration should be given to the possibility of an amendment, subject to the usual test of balancing the justice of permitting or refusing the amendment, taking account of the relevant circumstances.” 30. Deposit orders are governed by Rule 39.[39]Deposit orders (1) Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegations or arguments in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance the allegation or argument.31. The test of little reasonable prospects of success is less rigorous than no reasonable prospect of success but Tribunals must identify the claims and issues before considering making a deposit order. This approach was confirmed by the Employment Appeal Tribunal in Amber v West Yorkshire Fire & Rescue Service 2024 EAT146.32. If the claim does have little reasonable prospect of success, it does not necessarily follow that the Tribunal must make a deposit order, it can exercise its discretion to do so, in accordance with the overriding objective and having considered all the circumstances of the case as held by the Employment Appeal Tribunal in Hemdan v Ishmail and another [2017] ICR 486, EAT.33. Finally, the Tribunal was provided with three first instance decisions involving the respondent; T v Ministry of Defence (ET Case No. 2201755/2021), Gregory v Ministry of Defence (ET Case No: 3207239/2021) and Dunn v Ministry of Defence (ET Case No: 330937/2023). Submissions Respondent34. In relation to the claimant’s age and disability discrimination claims the respondent relies on Schedule 9, Paragraph 4(3) of the Equality Act 2010, which provides a statutory exception related to service in the armed forces. The respondent submitted that provision is absolute and unequivocally precludes the Tribunal from adjudicating the claimant’s claims.35. The respondent submitted this exemption is lawful in accordance with the Framework Directive 200/79/EC article 3(4) notwithstanding it is not subject to any proportionality requirement nor is it limited to situations where combat effectiveness may be prejudiced. This applies to recruitment and selection, it is a safeguarding provision and the respondent relies on the High Court decision in R (Child Soldiers International) v Secretary of State for Defence [2016] ICR 1062 regarding age discrimination and there is no basis for taking a different approach in relation to disability discrimination.36. Even if the exception breached the claimant’s rights under the European Convention on Human Rights and the Human Rights Act 1998, any “reading down” of the provisions of the Equality Act 2010 would “go against the grain” of the legislation and is not permitted or required by the interpretative obligation in section 3 of the Human Rights Act 1998 in accordance with Ghaidan v GodinMendoza [2004] 2 AC 557. 37. In any event, the respondent submitted the claimant’s rights under Article 8 are not engaged and therefore the obligation to interpret doesn’t apply and any attempt to interpret Schedule 9, Paragraph 4(3) of the Equality Act 2010 in a way that would permit age or disability discrimination claims would be inconsistent with Parliament’s clear intent to exempt such claims from the Tribunal’s jurisdiction. Therefore, the Tribunal must uphold the statutory exclusion. 38. Although the respondent brought the case of T v Ministry of Defence (ET Case No. 2201755/2021) to the Tribunal’s attention, it is a non-binding decision and not in line with this matter as it involved a different question from the one being considered today. It related to complaints about service in respect of a claimant who was post service and therefore, the relevance to combat effectiveness was less relevant but combat effectiveness is implicit for joiners. Although the decision in T was against the respondent it still supports the exception. The other first instance decisions of Gregory v Ministry of Defence (ET Case No: 3207239/2021) and Dunn v Ministry of Defence (ET Case No: 330937/2023 are persuasive worked through examples of the approach and the same principles ought to be applied in this case. 39. In relation to the race discrimination complaint, the respondent submitted the complaint should be struck out as it has no reasonable prospect of success or failing that, the Tribunal should order a deposit order. The claimant is aware of the deficiencies in his race discrimination complaint and the issue remains the claimant has not particularised an arguable case on race discrimination as set out in his claim form.[40]The claimant provided a range of reasons that relate to age and disability but hasn’t provided a set of facts from which the Tribunal could conclude he was discriminated against because of race. Furthermore, he acknowledges those of ethnic minority are serving in the Royal Airforce Auxiliary Reserves, the test determined whether he could proceed and the reason for the rejection of his application was because he was unable to attest before this 55th birthday. Because of race has not been made out by the claimant despite having every opportunity to particularise his claim. The thrust of the claim are the other matters, and the race discrimination complaint is a tack on, and the respondent should not be put to the expense of defending what is a weak case.[41]In the event the Tribunal does not strike out the claim, and as the claimant has not produced any financial information, the respondent seeks a deposit order in the maximum sum of £1,000.00. Claimant[42]In relation to his age and disability discrimination complaints, the claimant submitted that strike out was unreasonable as it provided no opportunity for the full facts of his case to be heard. His case is very technical, and the full facts should be heard before any strike out order is applied. Also, the power to strike out is used rarely by Tribunals.[43]The claimant’s case is premised on the point of application to the reserves when he was below the age of 55 and the respondent’s delay went beyond that threshold. Also, his age discrimination claim is separate to his disability discrimination claim.[44]The authorities provided by the respondent relate to those in service and post service and not those preservice. He agrees the exception applies in those circumstances but not in relation to recruitment and the Tribunal does have jurisdiction to hear his age and disability discrimination claims.[45]The claimant did not allege the exception provided in Schedule 9, paragraph 4(3) of the Equality Act 2010 infringed his convention rights provided by the Human Rights Act 1998. Nor did he seek to rely on T v Ministry of Defence (ET Case No. 2201755/2021). He accepted the exception applies to age and disability discrimination claims but only for those in active service and post service of the armed forces, he stated it does not apply to those seeking to join the armed forces.[46]In relation to his race discrimination claim, the Tribunal should afford him some leniency as a litigant in person who has tried to seek legal advice. He has also been unwell and has limited access to the documents in this matter as they are in the possession of the respondent.[47]The claimant stated he can provide the respondent with further details of his race discrimination claim and he intends to rely on two comparators who are both older and of a different race to him. He alleges their applications to join the reserves were not delayed in the same manner as his and that is the difference in treatment he relies on. He was not able to provide the Tribunal or the respondent with the names of those comparators as he wanted to seek their permission first. However, he would consent to an unless order to particularise his race discrimination claim and to provide the relevant information within 14 days.[48]The claimant requested the tribunal not strike out his race discrimination claim or make a deposit order to allow him time to provide further particulars clarifying his claim. Conclusion Age & Disability Discrimination
Conclusion
[49]The claimant’s age and disability discrimination claims appear to be excluded by virtue of Schedule 9, paragraph 4(3) of the Equality Act 2010.[50]Regarding the claimant’s position the exception does not apply to recruitment to the armed forces, Schedule 9, paragraph 4(1) of the Equality Act 2010 states; “a person does not contravene section 39(1)(a) or (c) or 2(b) by applying in relation to service in the armed forces a relevant requirement if the person shows that the application is a proportionate means of ensuring the combat effectiveness of the armed forces.”[51]This is elaborated upon in the explanatory notes to the Equality Act 2010 which state Schedule 9, paragraph 4(3); “…narrows the scope of the former combat effectiveness exception so that this applies only to direct discrimination in relation to recruitment….”. The claimant’s complaint of direct age discrimination relates to recruitment.[52]In relation to disability discrimination again the explanatory notes to the Equality Act 2010 state that Schedule 9, paragraph 4(3); “…. exempts the armed forces from the work provisions of the Act relating to disability and age.”[53]The lawfulness of the age discrimination exception was upheld by the High Court in Child Soldiers. The court was clear the Framework Directive 2000/78/EC recital 19 permits member states to choose not to apply the provisions of the Directive regarding disability and age to all or parts of their armed forces. This is further confirmed in article 3(4) of the Directive and Kenneth Parker J stated in Child Soldiers, this is an “unqualified” and “unrestricted” right which does not require to be “proportionately justified” or linked with combat effectiveness.[54]Therefore, the exception in relation to age and disability as provided by Schedule 9, paragraph 4(3) of the Equality Act 2010 as derived from the Framework Directive 2000/78/EC recital 19 and article 3(4) applies and the claimant’s age and disability discrimination claims are struck out as having no reasonable prospect of success in accordance with Rule 37(1)(a).[55]The claimant did not seek to challenge the exception on human rights grounds, nor did he rely on T v Ministry of Defence, but those potential arguments were drawn to the Tribunal’s attention by the respondent.[56]If the claimant had raised those arguments, and if the Tribunal accepted his human rights are engaged and the exception is inconsistent with them, the Tribunal would have been required to follow the principles laid down in Gaidan regarding interpreting the Equality Act 2010 compatibly with the Human Rights Act 1998 in accordance with section 3.[57]In Gaidan Lord Nicholls stated the application of section 3 does not depend upon the presence of ambiguity in the legislation being interpreted. It may also require a court to depart from the unambiguous meaning in the legislation and may require a court to read in words which change the meaning of the legislation to make it Convention compliant. However, that does not mean the court should adopt a meaning which is “inconsistent with a fundamental feature of the legislation.” It “must be compatible with the underlying thrust of the legislation being construed. Words implied must, in the phrase of my noble and learned friend, Lord Rodger of Earlsferry, “go with the grain of the legislation”.[58]Lord Steyn stated, “In practical effect there is a strong rebuttable presumption in favour of an interpretation consistent with Convention rights.”[59]Therefore, would the claimant’s interpretation that the exception in respect of age and disability discrimination does not apply to recruitment in the armed forces go with the thrust and grain of the legislation and is the exception a fundamental feature of the Equality Act 2010? The respondent submitted the exception is a fundamental feature of the Act.[60]The basis for the exception i.e. safeguarding combat effectiveness as provided in the Framework Direction is engaged in this case as the claimant sought to join the reserves. Furthermore, the Directive provided it was for each member state to decide how wide to enact the derogation in respect of their armed forces.[61]Although excluding the work provisions in respect of age and disability discrimination for the armed forces does seem at odds with the thrust of the Equality Act 2010 to make unlawful discrimination in employment and occupation, the Tribunal accepts the exception is a fundamental feature of the Equality Act 2010 because in particular it is derived from the Framework Directive. To interpret it otherwise would be inconsistent and go against the grain of the legislation.[62]The respondent submitted the strong presumption in favour of an interpretation consistent with Convention rights had been rebutted. In the circumstances, and if the claimant had raised a human rights argument, the Tribunal would have accepted it was rebutted. Race Discrimination[63]The power to strike out is a draconian measure and one that must be exercised judicially and in accordance with the overriding objective.[64]The claimant accepts he must provide further information in respect of his claim, and he is prepared to provide that although he was not able to do so during the hearing. The Tribunal is mindful the stress of hearings may mean litigants in person are not able to articulate their case as well as they might.[65]In the circumstances, the Tribunal must take the claimant’s case at its highest considering the claim form and the additional information provided during the hearing. As this is a discrimination claim that has not yet been properly formulated and in accordance with Cox, the Tribunal is unable to determine that it has no reasonable prospect of success and as such the respondent’s application to strike out is refused.[66]In respect of the respondent’s deposit order application and based on the limited information provided in the claim form, it does appear the race discrimination claim has little prospects of success as the claimant has not provided any information regarding the something more required to shift the burden of proof to the respondent.[67]However, during the hearing the claimant confirmed that he had taken legal advice and has identified two potential comparators who he believes he was treated worse than, and those comparators are of a different race to him. The claimant will provide further particulars of his race discrimination claim.[68]Therefore, and in accordance with Amber it would be premature to determine the respondent’s deposit order application until such time as the further particulars are provided.[69]In the alternative, and if the Tribunal is wrong about that, and if the Tribunal had determined the race discrimination complaint had little reasonable prospects of success, it would not have been bound to make a deposit in accordance with Hemdan in any event.[70]Further case management of the claimant’s race discrimination claim is provided separately. Case Number: 2217829/2024 EMPLOYMENT TRIBUNALS Claimant: Mr. D. Mabaso Respondent: Ministry of Defence Heard at: London Central Employment Tribunal (in public by video) On: 31 January 2025 Before: Employment Judge J. Galbraith-Marten (sitting alone) Appearances For the Claimant: In person For the Respondent: Mr. R. McLean, Counsel PRELIMINARY JUDGMENT The judgment of the Tribunal is that the claimant’s race discrimination claim is struck as having no reasonable prospect of success in accordance with Rule 38(1)(a) and is dismissed.