Mr Matthew CoverleyClaimantMinistry of Defence RECORD OF A PRELIMINARY HEARINGRespondent
Before
Employment Judge S MooreIn person for claimantMr S Crawford (instructed by Counsel) for respondentDate 2 May 2025
JUDGMENT
It is just and equitable to extend time in respect of the complaints of race discrimination relating the Claimant’s applications for employment in both 2020 and in 2022, which will now proceed to a full hearing.
REASONS
Introduction
[1]On 2 August 2023 the Claimant brought a complaint in the tribunal alleging direct discrimination on grounds of race pursuant to s.13 Equality Act 2010 (EqA). Early Conciliation had taken place between 27 July and 31 July 2023.[2]At a Preliminary Hearing on 23 February 2024 the complaints of alleged discriminatory treatment were identified as follows: - In 2020 the Respondent rejected the Claimant’s application for employment Case Number: 3309432/2023 (CVP) 2 of 6 - In 2022 the Respondent rejected the Claimant’s application for employment - In 2023 the Respondent failed to address the Claimant’s service complaint.[3]This Preliminary Hearing was set down to determine whether the Tribunal lacked jurisdiction to determine the claims:(i) By operation of sections 120 & 121 of the EqA and/or(ii) Because they were presented outside the applicable statutory time limit in s.123 EqA.
Issues
[4]The Respondent since accepted that as the Claimant was not serving as a member of the armed forces when the acts giving rise to the complaints were done s. 21 EqA does not apply. Accordingly, the only issue before me today was the time limit issue. At the outset of the hearing, it was further clarified that the time limit issue only applied to the first two complaints, the third complaint being in time.[5]The Claimant provided a witness statement and was cross-examined. There was also an agreed bundle of documents of over 500 pages. On the basis of that evidence, I make the following findings of fact for the purposes of this hearing.
The Facts
[6]The Claimant served in the Army from 1996-2018 where he achieved the rank of Warrant Officer and became a flying instructor graduate of the Central Flying School.[7]Between 2014 to 2018, he served with the RAF as attached personnel, holding the position of Lead Army Pilot/Instructor.[8]In 2017 he expressed his interest in joining the RAF, though sought a civilian job as a backup, for when his service in the army came to an end. That application to the RAF does not form part of the Claimant’s case other than for background purposes.[9]Subsequently, the Claimant took the civilian job in question, joining Ascent Flight Training, a company providing military training to the RAF through civilian instructors.[10]In early 2020 he reapplied to join the RAF. The Claimant’s evidence was that he had positive conversations about his application, and documents in the bundle indicate that as at 1 July 2020 the Claimant had been placed in the Pilot allocation pool. However further documents show that on 25 November 2020 he was removed from the pool and his application rejected on the grounds that he needed “phase 1 training” because he was not a commissioned officer pilot. The Claimant maintained that after the initial positive conversations he never heard anything more about his application, not even that it had been closed, and submitted that the stated reason for closing his application was disingenuous because he didn’t need “phase 1 training”. He submitted his position in respect of training was supported by documentation in the bundle and further by the fact that in July 2020 he had been placed in the Pilot allocation pool. Those are matters which it is not for me to determine today. Case Number: 3309432/2023 (CVP) 3 of 6[11]On or about 15 July 2022 the Claimant reapplied to the RAF but on 27 July 2022 received an email that aircrew were not being recruited by the RAF and that his application had been closed. The Claimant said that at the time he considered this a strange response but could only accept the decision, however later he discovered the RAF had not stopped recruiting aircrew in 2022.[12]On 4 August 2022 Group Captain Lizzy Nicholl, then head of RAF recruiting, resigned in protest at a recruitment policy to give priority to female and ethnic minority recruits over white men, as well as bullying she said she suffered to implement this policy. Her resignation attracted some media attention.
The law
[14]On 16 and 17 August 2022 Sky and the BBC ran news stories with the headlines “RAF pauses job offers to white men to meet “impossible” diversity targets” and “Senior female recruitment officer resigns over targets”.[15]Following the resignation of Gp Capt Nicholl the RAF conducted an internal investigation. The terms of reference of the investigation were agreed on 14 October 2022 and included whether over the period from the start of the recruiting year 2020/2021 to “the present time” positive acts of discrimination had taken place.
Findings of fact
[16]On 1 February 2023, while the investigation was still ongoing, Air Chief Marshal Sir Mike Wigston appeared in front of the Defence Select Committee and, amongst other matters, was asked about the alleged policy of positive discrimination. The Defence Select Committee was told there had been no discrimination and the policy had never been implemented.[17]The appearance of Air Chief Marshal Wigston also generated some media coverage.[18]On 1 and 3 February 2023 Sky ran news stories with the headlines “RAF admits mistakes over discrimination against white men” and “RAF criticized for “cringeworthy” response over order to prioritise female and ethnic candidates”.[19]The RAF’s internal report was completed in April 2023.[20]Paragraph 2.4 of the report concludes “We determined that prior to the former Gp Capt R & S’s appointment 161 Ethnic Minority and female candidates had been pulled forward onto Phase 1 training ahead of other candidates….We found that the former Gp Capt R & S received legal advice in May and June 2022 that indicated that the pull forward of candidates based on protected characteristics was contrary to the Equality Act 2010, which provided reasonable justification for the former Gp Capt R & S to say that acts of positive discrimination had taken place in RY20/21.”[21]Paragraph 4.3 of the report provides “The Defence Diversity and Inclusion Strategy 2018-2030 set the goal of increasing representation of underrepresented groups at all levels…”. The report also refers to specific targets having been set in terms of percentages of recruitment of women and ethnic minorities.[22]Although the report is dated 27 April 2023 no public statement was made until 29 June 2023. Case Number: 3309432/2023 (CVP) 4 of 6[23]When it was made on 29 June 2023 that public statement generated considerable media attention. On 29 and 30 June 2023 the BBC and Sky ran news stories with the headings “RAF diversity targets discriminated against white men” and the “Royal Air Force unlawfully discriminated against white male recruits in bid to boost diversity”.[24]The Claimant was made aware of these news stories by a friend at which point he began to research the matter himself.[25]On 11 July 2023 the Claimant he filed a service complaint with the internal complaints’ procedure of the armed forces.[26]On 25 July 2023 he was informed that the Service Complaint Policy (SCP) only applied to serving or former personnel in respect of complaints that arose within their service period. The Claimant therefore decided there was no point pursuing the SCP and did not attend the interview scheduled on 26 July 2023.[27]In any event, as stated above the Claimant applied to Tribunal on 2 August 2023.
Conclusions
[28]Section 123(1) EqA provides that proceedings may not be brought after the end of the period of 3 months starting with the date of the act to which the complaint relates or such other period as the tribunal thinks just and equitable.[29]It follows that the complaint in relation to the Claimant’s 2020 application is approximately 2 & ½ - 3 years out of time and the complaint in relation to the Claimant’s 2022 application is approximately 9 months out of time.[30]The question is therefore whether the complaints in question have been brought within such other period as is just and equitable and should be allowed to proceed.[31]In Robertson v Bexley Community Centre t/a Leisure Link 2003 IRLR 434, CA, the Court of Appeal stated that when employment tribunals consider exercising the discretion under what is now s.123(1)(b) EqA, “there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse. A tribunal cannot hear a claim unless the claimant convinces it that it is just and equitable to extend time. So, the exercise of discretion is the exception rather than the rule.” However, this does not mean that exceptional circumstances are required before the time limit can be extended on just and equitable grounds, simply that an extension of time should be just and equitable.[32]In this case the reason for delay relied on by the Claimant is that he did not know about the Respondent’s discriminatory policy until June 2023 and prior to that had no reason to believe the rejection of his applications in 2020 and 2022 were, or might have been, tainted with discrimination.[33]The Respondent’s case is that the Claimant must have been aware of the media coverage in August 2022 and February 2023, or at least the matters covered in those stories. He had been a member of the armed forces for 22 years and had been very keen to join the RAF. His friendship circle was with present and past members of the armed forces and on the balance of Case Number: 3309432/2023 (CVP) 5 of 6 probabilities he would have known about the news stories and discussion of an alleged discriminatory policy. Further, the Claimant’s written submissions were drafted in a way that suggested he had had some knowledge of the discriminatory policy prior to June 2023 and that his awareness had simply crystalized in June 2023 due to the public statement and associated media coverage.[34]Alternatively, even if the Claimant hadn’t known about the discriminatory policy prior to June 2023 it was reasonable to expect him to have known.[35]The Claimant was adamant that he hadn’t known about the policy or news coverage until June 2023 when a friend alerted him to it. His submissions had been drafted that way because he was trying to express the idea that even if he had known about the news stories in August 2022 and February 2023 at that stage they were just matters of speculation - indeed the existence of such a policy had been denied by Air Chief Marshal Sir Mike Wigston before the Defence Select Committee - and so he wouldn’t have considered there was any basis for bringing a claim before the public statement (following the conclusion of the internal investigation) in any event. Further at the time of the February 2023 news coverage he was on a course at Gatwick learning to fly a Boeing 737 and wouldn’t have been looking at online news stories.[36]I accept that evidence. I found the Claimant an honest and compelling witness. It is very easy to miss news reports that are not main headline news and/or are short-lived in duration. Further the news stories in August 2022 and February 2023 were less impactful than the news stories in June 2023, being based, respectively, only on the resignation of Group Captain Nicoll and Air Chief Marshal Wigston’s appearance before the Defence Select Committee, compared to the outcome of the internal investigation when it was found that a discriminatory policy had in fact been applied and a public statement made to that effect. And the fact that the Claimant had been engaged in an intense training course over the relevant week in February 2023 is a very plausible explanation as to why he didn’t see the news stories on 1 and 3 February 2023.[37]I therefore accept the Claimant didn’t know until on or about 29 June 2023 that the RAF had applied the policy in question or that he had reason to suspect it might have done.[38]Further, there is no reason why the Claimant should have known about the policy earlier than he did. He had no reason to believe there was anything discriminatory about the fact his applications had been unsuccessful, and it would not be reasonable to expect him to have been actively on the lookout for evidence of possible discrimination.[39]I also note that once the Claimant became aware of the policy he acted quickly, filing a service complaint with the internal complaints’ procedure of the armed forces on 11 July 2023 and, on being informed on 25 July 2023 that the SCP only applied to serving or former personnel in respect of complaints that arose within their service period, initiating the Early Conciliation process on 27 July 2023.[40]These are strong factors that weigh in favour of exercising discretion to extend time. Case Number: 3309432/2023 (CVP) 6 of 6[41]As regards the factors against extending time, and in particular the prejudice to the Respondent, while the delay – particularly in respect of the Claimant’s 2020 application – is considerable, I note that much of the evidence relevant to the discriminatory policy will have been preserved and already considered in the context of and for the purposes of the Respondent’s internal investigation, and further that much of the evidence specific to the Claimant’s applications appears to be a matter of documentary record.[42]Finally I note that whilst at one point Mr. Crawford appeared to suggest that it could be seen from the documents that the Claimant’s case was weak, which was a factor that weighed against extending time, I’m bound to say that on the evidence drawn to my attention – and without of course the benefit of any witness evidence other than that of the Claimant – the documents in fact suggest that there are questions to be answered by the Respondent.[43]Accordingly, I find it is just and equitable to extend time in respect of the Claimant’s complaints relating to both his 2020 and his 2022 applications, which means the Tribunal does have jurisdiction to hear them and they will now proceed to a full hearing. ________________________ Employment Judge S Moore Date: 5 July 2024 Sent to the parties on: 23 August 2024 For the Tribunal: Case Number: 3309432/2023 EMPLOYMENT TRIBUNALS Claimant: Matthew Coverley Respondent: Ministry of Defence Heard at: Cambridge Employment Tribunal On: 28, 29 and 30 April, 1 and 2 May 2025 Before: Employment Judge Freshwater Tribunal Member Mr Grant Tribunal Member Mr Scott Representation Claimant: Ms L Millin (counsel) Respondent: Mr S Crawford (counsel)[1]The claimant’s claim of direct race discrimination is not well-founded and is dismissed.[2]The claimant’s claim of direct sex discrimination is not well-founded and is dismissed. Approved by: Employment Judge Freshwater Date: 2 May 2025[1]The claimant is Mr Matthew Coverley and the respondent is the Ministry of Defence.[2]The parties will be referred to as the claimant and the respondent throughout these reasons. Witnesses will be referred to by name.[3]The claimant’s complaint is that the respondent discriminated against him by reason of race and sex contrary to section 13 of the Equality Act 2010. Issues[4]The issues in the case were agreed between the parties. In summary, the tribunal was asked to consider if the rejection of the claimant’s applications for employment in 2020 and 2022 was because of his race and/or his sex.[5]The list of issues was amended to reflect that the jurisdiction of the tribunal was not in dispute, time limits had been dealt with at an earlier hearing and that the claimant withdrew the particulars of his claim relating to his service complaint in 2023. Procedure and hearing[6]The hearing took place remotely by CVP over the course of 5 days.[7]The tribunal was referred to a bundle of documentary evidence of 1215 pages.[8]The claimant submitted a witness statement and gave oral evidence.[9]The respondent submitted 9 witness statements, and 6 witnesses gave oral evidence. Those witnesses were: Mr Tomala, Mr Udall, Mr Aston, Mr Morris, Mr Harford and Mr Coleman. The witnesses were cross-examined in detail, with the exception of Mr Coleman whose evidence was not challenged by the claimant.[10]The tribunal received written closing submissions from both parties, which were expanded upon orally.[11]The tribunal found that the claimant’s complaint of direct race discrimination was not well founded, and it was dismissed.[12]The tribunal found that the claimant’s complaint of direct sex discrimination was not well founded, and it was dismissed.[13]The tribunal gave an oral judgment and reasons for the decision on the final day of the hearing. The claimant requested written reasons. The law[14]Section 13(1) of the Equality Act 2010 states that “A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”[15]Section 136 of the Equality Act 2010 deals with the relevant burden of proof: “(1)This section applies to any proceedings relating to a contravention of this Act. (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)The reference to a contravention of this Act includes a reference to a breach of an equality clause or rule.” Findings of fact[16]The claimant served in the Army from 28 February 1996 until 4 March 2018. He was seconded to the RAF from 2014 until 2018. He was a pilot and flying instructor. He held the rank of Warrant Officer Class 2. This means that he was not a commissioned officer.[17]The rank of pilots in the RAF is different from those in the Army. All RAF pilots are commissioned officers. Becoming a commissioned officer includes completing two phases of training, one of which the claimant had not completed.[18]The witness statement of Mr Coleman explains the different ways in which someone may be commissioned in the RAF: “Since 1 April 2013 there have been 13 means to commission in the Royal Air Force. Of these, the most common are for those with no previous service and are referred to as Direct Entry. After this is the Internal Commissioning Scheme for those already serving as enlisted personnel. Those serving in other forces are Transfers, those that served previously seeking return are referred to as Re-Joiners and those that have no previous service but have acquired skills that the Service requires are termed Lateral Entry. These categories are distinct and follow different and discrete recruitment processes.”[19]Mr Coleman went on to explain: “When Transfer, Re-Joiner and Lateral Entry applicants apply for an RAF Commission, they complete an online application form which requires disclosure of previous service in the Armed Forces and their skills. They sit separately from Direct Entry candidates. It has been normal policy for Warrant Officer 2nd Class to require full officer training since the Claimant’s applications in 2020. Only through a discrete Service need, normally urgent operational necessity, will this be waived.”[20]The rules about commission are found in Air Publication 3393 [“AP 3393”]. This is found in the bundle. It can be seen on page 1083 that there is a footnote saying serving Warrant Officers may be permitted to commission via the Commissioned Officers Warrant Scheme. This is important because the claimant was not serving at the time of his application.[21]Candidates who are currently serving in the RAF may apply to commission through the Internal Commissioning Scheme [“the ICS”]. The ICS will also be used to assess the rank and seniority of re-joiners or transferees. Details of the Scheme and minimum qualifications are set out in Chapter 2, Sections 1 and 2. (See para 1304 of AP 3393).[22]In March 2020, the claimant applied to rejoin the RAF. The use of the word “rejoin” is important in this context. His application was processed by Mr Morris, who was part of the rejoiners team. That team processed applications from people seeking to rejoin the RAF or transfer from the Army or Navy.[23]The claimant’s application was closed by Mr Morris. There was a dispute as to whether the claimant received notification that his application had been closed. The claimant said that he had not been informed. Mr Morris said that the online portal had been updated and that the claimant would have been prompted to log on to see a message informing him that his application was rejected. Mr Morris also said that the claimant telephoned the rejoiners team to question the decision. We did not find this dispute to be relevant and made no finding as to whether a conversation took place. In our view, it simply is not relevant to the issues in the case. The fact is that the application was rejected regardless of whether or not the decision was effectively communicated. There could have been better communication. This is separate point to the basis of the rejection.[24]The reason for the rejection was that the Claimant did not meet the criteria outlined in the relevant Joint Service Publication ("JSP"), which serves as the policy framework for such applications. We accept Mr Morris’s evidence that this was the basis for the reason recorded on the online portal which noted age and qualification.[25]The claimant applied again to join the RAF on 15 July 2022. His application was processed by Mr Harford, who worked in the Transferee and Rejoiners Team. Mr Harford determined that the claimant was in a “unique” position because of the rank he held and the fact that he had not completed phase 1 training. This meant that he could not be processed by Mr Harford’s team.[26]Mr Harford sought advice from the Policy and Processing Team to determine what should be done. The Policy and Processing Team determined that the Claimant was a direct entrant for the purposes of his application. We accept Mr Harford’s evidence that he was told by the Policy and Processing Team that applications for the role of pilot were not being accepted. In addition, Mr Harford says in his witness statement that the policy team also “noted that this may change in the future, and that the Claimant should wait 3 to 6 months before re-applying.” Mr Harford informed the claimant of this and closed the application.[27]It was accepted by the respondent that positive discrimination had taken place within recruitment. This was explained by Mr Coleman as follows: “The positive discrimination referred to in the 2020–2021 Non-Statutory Inquiry (NSI) was confined to Direct Entry and Internal Commissioning Scheme candidates. It did not apply to Lateral Entry/Re-Joiner/Transfer candidates.”
Conclusions
[28]The fact of the admitted positive discrimination within recruitment in the RAF is sufficient that, in the absence of any other explanation, the tribunal could conclude that discrimination occurred. The tribunal rejects the submission that the policy of positive discrimination was never put into effect. It is very clear from the evidence before us that it was: BAME and female candidates were prioritised for the OASC and subsequent training. This was recognized publicly. The fact that it applied only to direct entry and ICS candidates is relevant because, in this case, the claimant was told he was not eligible to rejoin. In 2022, he was told that he could only apply as a direct entrant, but that applications were not being accepted. The positive discrimination policy was therefore never applied to either of the claimant’s applications. The decision makers behind the policy would not have provided evidence relevant to this case.[29]It is understandable that Mr Coverley formed the view that he, also, had been discriminated against considering the publicity around the policy on recruitment. We accept that this is his honestly held belief and that he has pursued his claim in that light. There are certainly aspects of the handling of his applications, particularly in 2020, that were not dealt with appropriately. However, we do not think that he was discriminated against because of his race or sex.[30]The reason that we are satisfied that the respondent did not discriminate against the claimant in 2020 is because we accept that the respondent could not process him as a rejoiner. This is because he was not a commissioned officer when he left service, and he was not in service. No waiver was available to him. The evidence before us is that, exceptionally, a waiver may be granted to a serving Warrant Officer 1st class. The fact that Wing Commander Dewar directed colleagues “to run it ground” does not mean that the impossible could be made possible. It simply was not permitted under the rules applicable. The phrase “Run it to the ground” means, in our view, to exhaust all options. That did not happen, because of the delays caused during the Covid-19 pandemic and sick leave from one of those dealing with the case. Given that his application was unique, more care could have been taken to explain this to the claimant at the time and to make sure he understood the options available to him (if any).[31]The 2022 application was rejected because the claimant was not eligible to be processed by the rejoining team. This was the evidence of Mr Harford, which we found to be credible. It is consistent with the evidence we have seen regarding the rules about rejoining. In addition, we note that Mr Harford administered the application promptly and communicated efficiently with the claimant. This was an example of much better handling and administration than the claimant received in 2020.[32]It is concerning that the policy team informed Mr Harford that applications for qualified pilots were not being accepted, when the evidence in the bundle is that applications were being accepted. However, in our view the fact that it was said that the claimant should apply again in 3 – 6 months is consistent with the fact that he was not being treated less favourably than a hypothetical female or BAME candidate. It is much more likely that no thought was given to the fact that, because of his age, he would not – in reality- have been eligible to apply in that way regardless of his race or sex.[33]Ultimately, the tribunal understands that this must have been an incredibly frustrating position for the claimant. He clearly had the skills and experience necessary (as he had done the job before) but the rules of rejoining meant that he simply was not eligible to join the RAF in a role that required him to be a commissioned officer. Nothing in the relevant AP or JSP policy documents demonstrates that he could be permitted to join in the role he had previously been undertaking on secondment. We are satisfied on the balance of probabilities that this was the only reason for the rejection of the claimant’s applications for employment and that the policies applied would also have been applied in the same way regardless of the applicant’s race and/or sex if their circumstances were materially the same as those of the claimant.[34]The claimant’s race and sex played no part in either rejection and both complaints are dismissed. Approved by: