Employment Judge FredericksMr J Jupp (instructed by Counsel) for claimantMs J Gray (instructed by Counsel) for respondentDate 26 April 2023
JUDGMENT
[1]Paragraphs 26(a), 26(a)(i) and 26(a)(ii) of the claimant’s particulars of claim are struck out because the Tribunal has no jurisdiction to hear it.[2]The balance of the claimant’s claims are not struck out because, although presented outside of the primary time limit, it is just and equitable in all the circumstances to extend the time permitted to bring the claims and so the claims are in time under s123(2)(b) Equality Act 2010.
REASONS
[1]This is the reserved decision following a full day preliminary hearing which concluded late in the afternoon. I also received submissions overnight from both Counsel, which I have taken into account when coming to this decision. 1 of 12[2]The claimant is a Corporal in the Royal Air Force. She brings claims arising from circumstances around her pregnancy and maternity leave in 2017 and 2018. She brings a pregnancy and maternity discrimination claim, complaining of unfavourable treatment in respect of a cancelled medical review (which had negative consequences for her service status, and an indirect sex discrimination claim following the RAF not allowing her defer acceptance of a promotion (requiring relocation) whilst on maternity leave. The claimant pleads that the treatment meted to her was a continuous course of conduct from August 2017 to 3 October 2018 (when she was removed from the promotion list).[3]As is required before bringing a claim in the Employment Tribunal, the claimant first made a Service Complaint. When this did not offer the redress sought, the claimant turned her mind to bringing these proceedings. When she did so, the claims were outside of the primary time period. The respondent applied for the claims to be struck out because they were brought out of time and it is not just and equitable to extend time. The claimant argues that it is just and equitable for time to be extended in her case so that the claims can be sustained.[4]The claimant gave sworn evidence in support of her arguments and I heard submissions from both counsel following that evidence. I also had access to an agreed paginated bundle of documents. Page references in this judgment are references to the pages of that bundle. Issues[5]The purpose of this hearing was initially set out by Employment Judge R Lewis’ direction dated 4 April 2022: “to consider strike out of all or part of the claim on grounds of limitation”. The respondent’s application runs wider than that, and includes the argument that the claimant’s claim at paragraphs 26(a)(ii) and (ii) (pregnancy and maternity discrimination from medical board practice) cannot be brought in the Employment Tribunal because it had not been considered in the Service Complaint. Mr Jupp agreed to address that point orally, although it had not been part of his written preparation for the hearing. Relevant facts[6]I make the following factual findings which are relevant for determining this preliminary issue, based on the evidence I have seen or heard. Limitation issue[7]In relation to limitation, these relate to the timeline and the claimant accepts her claim is outside of the primary time limit. I consider that these facts for consideration of the limitation issue are:- 7.1. In May 2017, the claimant notified her manager of her pregnancy; 7.2. On 17 June 2017, the claimant is told that she was ranked number 15 on the promotion list for promotion to Sergeant; 2 of 12 7.3. On 18 July 2017, a note is added to the claimant’s medical record which says “Appointment cancelled by service – Due to pt being pregnancy the appt with the RAF Medical Board has been cancelled. Please re-refer on return from maternity leave” (page 57); 7.4. On 6 August 2017, the claimant was told about the cancellation of her appointment which was due to take place on 9 August 2017; 7.5. On 6 November 2017, the claimant commenced maternity leave, giving birth on 26 November 2017; 7.6. On 20 April 2017, the claimant is offered promotion into a role at RAF Benson; 7.7. In June 2018, the claimant declines promotion at RAF Benson and applies for vacancy at MCTC Colchester; 7.8. On 18 July 2018, claimant told she was unsuccessful in application for MCTC Colchester and understands this to be because of her medical status; 7.9. On 27 July 2018, the claimant obtains support from SSAFA and the rep briefly explored ‘discrimination’ complaints; 7.10. In July 2018, the claimant was advised by Citizens’ Advice to raise a service complaint; 7.11. On 10 September 2018, the claimant’s maternity leave ended; 7.12. On 12 September 2018, the claimant declined the promotion at RAF Benson (page 70); 7.13. On 14 September 2018; Wilkin Chapman advised the claimant to raise a service complaint (page 91) but is not asked about and does not advise on Employment Tribunal proceedings; 7.14. On 15 October 2018, the claimant asks Wilkin Chapman about “advice as to if the military has broken the law against [her] whilst on maternity leave” (page 91); 7.15. On 19 October 2018, Wilkin Chapman replies (pages 90 to 91) to advise that “To advise on any potential claim outside of the Service Complaint route (which you must go through in any event if you want to bring a claim), I would require further information. I am happy to review the chronology and any other documents you wish to supply to support your arguments, however this would be chargeable at my hourly rate of £155 plus VAT”; 7.16. On 3 November 2018, the claimant was removed from the promotion list and told of this on 30 November 2018, with her request to defer promotion being refused. 3 of 12 7.17. On 22 January 2019, the claimant is advised by a colleague that she needed to wait for the outcome of the service complaint before bringing an Employment Tribunal claim; 7.18. On 24 January 2019, the claimant submitted a service complaint and then added further information on 19 February 2019 (pages 72 to 87); 7.19. On 1 February 2019, the claimant emailed Wilkin Chapman to ask if that firm would complete a submission to ACAS for her in respect of employment tribunal proceedings (pages 89 to 90); 7.20. On 4 February 2019, Wilkin Chapman replied to advise who the claimant’s employer is likely to be, and that it is for the claimant to contact ACAS (page 89); 7.21. On 10 May 2019, the claimant made a first notification to ACAS (page 1); 7.22. On 22 May 2019, the claimant asked Wilkin Chapman if they work on ‘no win no fee’ (page 89) and is told on the following day that the firm does not (page 88); 7.23. On 10 June 2019, the first ACAS certificate in the claim is issued; 7.24. On 17 December 2020, the Service Complaint outcome was released; 7.25. On 8 February 2021, the claimant appealed the Service Complaint outcome; 7.26. On 21 September 2021, there was an outcome to the Service Complaint Appeal which advised the claimant that her rights of appeal extended to the Service Complain Ombudsman or the Hight Court for judicial review – it does not mention the Employment Tribunal; 7.27. On 21 October 2021, the claimant approached her solicitors, and was advised by counsel of the time limits in her claim on 16 November 2021; 7.28. ACAS early conciliation started again on 19 November 2021, ending on 23 November 2021 (page 2), with the ET1 presented on 6 December 2021 (pages 3 to 15); and 7.29. ET3 filed late, with permission, on 17 February 2022. Jurisdiction issue – paragraphs 26(a), 26(a)(i), 26(a)(ii) particulars of claim[8]The respondent argues that the claimant cannot mount her claim of pregnancy and maternity discrimination relating to the cancelling of her medical appointment because it was not taken forward as part of her service complaint, robbing the Employment Tribunal of jurisdiction. The relevant parts of the documentation to establish facts on this issue are as set out below.[9]Paragraph 26(a) of the particulars of claim reads (page 23):- 4 of 12 “a. her Medical Board appointment of 9 August 2017 to review the recovery of her ankle injury was cancelled because she was pregnant notwithstanding the clear factor that she was capable of attending that appointment and had made this clear to those responsible for the Medical Board. Furthermore, the claimant submits that: i. Had she not been pregnancy and the appointment cancelled because of her status as a pregnant woman, she would have secured effective promotion to a Sergeant position no later than the appointment date for the role at MCTC Colchester outlined above. ii. Had the respondent properly considered the claimant’s circumstances rather than applying a blanket ban approach to the medical boards of pregnant service members, the claimant would have been medically upgraded and eligible for promotion.”[10]The claimant’s service complaint begins at page 72. It is clear from a first reading of the narrative at page 74 that the claimant is complaining about treatment whilst pregnant and also whilst on maternity leave. The additional information supplementing the complaint on pages 77 to 87 incudes the passages relevant to the claimant’s medical status and medical board decisions: 10.1. “I’ve been a victim but not of my own doing. (Medically, Admin, Promotion, Poor policies, and with my Sqn relocating no CoC); 10.2. “9 Aug 17 – Med Board cancelled three days prior to actual appointment. Reason given: due to being pregnant”; 10.3. “18 July 18 - FS HR (FS Ellis) Honington contacted me to tell me that unsuccessful to due to my Med Cat”; 10.4. “On 18 Jul 18, FS HR (FS Ellis) at Honington contacted me to tell me I had been unsuccessful for the MCTC application due to my Med Cat, and that I had was to re-apply once it fell in line with the guidance notes”; and 10.5. “Med Category I had a TJMES of A4L5M4E5, and was due to attend a Med Board on 09 Aug 17. This was cancelled three days prior to the appointment in view of the fact that I was then pregnant and was now holding (as of 19 April 17) a TJMES of A4L5MSE6 MNT instead”;[11]On 22 March 2019, the Specified Officer advised the claimant of the 11 heads of claim which were being submitted to the Decision Body for determination. None of those heads included the complaint which is pleaded at paragraph 26(a) of the particulars of claim. I have not seen the letter informing the claimant which of her complaints have been carried forward, but I am satisfied that the claimant did not seek to review or appeal the decision to omit that particular complaint. 5 of 12[12]Paragraph 10 of the service complaint decision letter (page 96) reads: “you will have noted from the Specified Officer’s (SO) letter of admissibility (22 Mar 19) that your complaint regarding the scheduled Medical Board to assess recovery from an operation was not included. Therefore, I have not included it in this DL.”. None of the decision letter therefore considered this complaint.[13]The claimant appealed the outcome and made reference to the suspended Medical Board. The appeal outcome letter quotes the claimant as saying, in her appeal, “… the best outcome would be to attend the review of my suspended med board, and if medically suitable, apply for the MCTC role if still available.”. The appeal did not consider this issue any further in its review of the service outcome because, I consider, the issue did not as a matter of fact form part of the service complaint which was taken to determination. Relevant law on jurisdiction and time limits[14]Section 120 Equality Act 2010 gives the Employment Tribunal to deal with matters relating to Part 5 of the same Act, titled “Work”. This is where the Tribunal derives jurisdiction to deal with discrimination in the workplace. Section 121 Equality Act 2010 limits the jurisdiction of the Tribunal where the complaint is made by a member of the armed forces, as is the case here. It says:- “(1) Section 120(1) does not apply to a complaint relating to an act done when the complainant was serving as a member of the armed forces unless—(a) the complainant has made a service complaint about the matter, and(b) the complaint has not been withdrawn.”[15]The respondent contends that a complaint is deemed withdrawn if it is not considered by the Defence Council and the complainant does not appeal that decision. In submissions, Mr Jupp quoted s121(2) Equality Act 2010 which currently says something different. In the hearing, I noted that that legislative wording is new and was not the wording in force at the time in question or at the time the claimant brought her claim. In writing after the hearing, Mr Jupp confirmed that the section in question did not restrict the amendments to claims brought after the commencement date. That may be so, but I can see no argument here which displaces the general rule that amendments to legislation should have retrospective effect – a principle best explained by Lord Kerr from paragraphs 22 to 26 in Wilson v Innospec Limited and others [2017] UKSC 47. For this reason, I do not include that piece of legislation here as relevant law.[16]What constitutes a ‘deemed withdrawal’ has, though, been considered in case law. In Maloudi v Ministry of Defence [2011] UKEAT/463/10/JOJ, Silber J held that a ‘service complaint’ is invalid if it is not accepted and put forward to the Defence Council. Whilst that case considered, in part, specific wording from the Race Relations Act 1976, I consider that the broad ratio relating to the purpose of the service complaint process bind me in this decision. The important passages, dealing with the service complaint regime broadly, which inform me, is set out in the following paragraphs:- 6 of 12 “24. So a complaint which has not been accepted by the prescribed officer cannot be dealt with by the Defence Council. It must therefore follow that the intention of the legislature was that a ‘service complaint’ was a complaint which was accepted as valid by the prescribed officer as otherwise it could not have been considered by the Defence Council. As I will explain, the decision of the prescribed officer to refuse to accept what purports to be a ‘service complaint’ can be challenged by judicial review.[26]A second reason why I consider that a ‘service complaint’ must mean a complaint which has been accepted by the appropriate prescribed officer as being valid is that this meaning is consistent with the purpose of the provisions in requiring a complaint to the prescribed officer as a pre-requisite to making a complaint to the Tribunal. There is much authority to the effect that “a certain amount of common sense [must be applied] in construing statutes (per Lord Goddard CJ in Barnes v Jarvis [1953] 1WLR 649,625).[29]First, the need for a serviceman to make a complaint to the prescribed officer before lodging an appeal before the Employment Tribunal explains why the usual period for bringing proceedings for issues of race relations [which this case was about] is not the usual period of three months beginning when the act complained of was done. Instead, in light of the requirements under the service complaint procedure, service personnel are afforded an extra in which to lodge Employment Tribunal proceedings (see RRA s68(1)(b) now enacted by s123(2) Equality Act 2010).” 17. The service complaint process is laid out from section 340A Armed Forces Act 2006. That section reads:- “340A Who can make a service complaint?(1) If a person subject to service law thinks himself or herself wronged in any matter relating to his or her service, the person may make a complaint about the matter.(2) If a person who has ceased to be subject to service law thinks himself or herself wronged in any matter relating to his or her service which occurred while he or she was so subject, the person may make a complaint about the matter.(3) In this Part, “service complaint” means a complaint made under subsection (1) or (2).(4) A person may not make a service complaint about a matter of a description specified in regulations made by the Secretary of State.” 18. Section 340B Armed Forces Act 2005 introduces the ‘specified officer’ who determines whether or not the service complaint made is admissible and then passes admissible claims for determination. Section 340C(1) then reads: 7 of 12 “(1) Service complaints regulations must provide for the Defence Council to decide, in the case of a service complaint that is found to be admissible, whether the complaint is to be dealt with— (a) by a person or panel of persons appointed by the Council [as is the case here], or (b) by the Council themselves.” 19. In summary, then, the service complaint procedure is there to deal with service personnel complaints about their treatment within the armed forces. That is its purpose and it is intended to be the a comprehensive first port of call to deal with service related complaints. For this reason, service personnel are required to go through a service complaint process prior to beginning proceedings in the Employment Tribunal. The first step is to lodge a complaint, which is considered by the designated officer. That officer determines whether the complaint, in whole or part, is admissible or valid to be put forward for determination by the Defence Council. Matters taken forward to the Defence Council form part of the accepted service complaint. Those matters which are not taken forward, are not part of the accepted service complaint. Complainants may appeal the decision not to take all or part of the complaint forward, through the ombudsman or judicial review. Where they do not do so, I consider it is proper that that aspect of the claim should be considered to have been abandoned at that point. Relevant law on time limit and just and equitable considerations 20. Section 123(2) Equality Act 2010 sets out the relevant time limit for bringing a claim in the Employment Tribunal in relation to complaints which form part of the service complaint. Those provisions read:- “(2) Proceedings may not be brought in reliance on section 121(1) after the end of – (a) the period of 6 months starting with the date of the act to which the proceedings relate, or (b) such other period as the employment tribunal thinks just and equitable. 21. The parties accept that the primary time limit in this case expired on 3 October 2018, and so the claim can only be considered in time if I consider it just and equitable to extend time. It is for the claimant to persuade me to exercise my discretion to extend time (Chief Constable of Lincolnshire Police v Caston [2009] EWCA Civ 1298). That discretion is wide, and is to be exercised in response to the particular facts or circumstances of the case in question (Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] ICR 1194 CA; University Hospitals Birmingham NHS Foundation [2021] EWCA Civ 23). 22. In the usual way, considering what is ‘just and equitable’ to extend time involves balancing various factors which are common to situations where a Judge must consider whether to waive a breach of a time limit or some other order. This includes the length and reasons for the delay and, perhaps most importantly when 8 of 12 considering fairness, where the balance of prejudice lies between the parties. This, in turn, includes considering factors such as the merits of the claim should it continue and whether the delay has resulted in any material degradation to the principles enshrined by the overriding objective. 23. It is possible, indeed likely, that the time limits to bring a claim to the Employment Tribunal might expire before it is clear whether or not a valid service complaint has been brought. This issue was considered by Lord Justice Underhill in Williams v Ministry of Defence [2013] EWCA Civ 626, Since then, the usual practice is to stay the Employment Tribunal proceedings, once brought, until the outcome of the Service Complaint is clear. This, also, reflects the general aims of the Service Complaint procedure to provide a comprehensive framework to assess and address a service person’s legal complaint about the way in which they have been treated but then does preserve the right to bring a complaint to the Courts or Tribunals (as noted by HHJ Eady QC (as was) in Duncan v Ministry of Defence [2014] UKEAT/191/14/RN). Determination of the issues Paragraph 26(a), 26(a)(i) and 26(a)(ii) particulars of claim 24. The claimant made the complaints as outlined above. Those included details about the matters set out in this paragraph of the claimant’s particulars of claim, namely the cancellation of her medical board and the subsequent alleged impact of that on her ability to secure promotion. Those matters were put before the designated officer, and were not put forward as a head of claim to the Defence Council. I have not seen an explanation for why those matters were not taken forward. I am not clear, and it was not evidenced, whether a specific exclusion was offered or whether (as is possible) the issue was simply missed by the officer reviewing the complaint. In either scenario, the claimant did not appeal or respond to that omission. Instead, she accepted the heads which were proposed to be put forward and trusted that the matters would be dealt with. Her complaints to the Ombudsman about her service complaint deal only with the delay to the dealing of the complaint, not in relation to the substance of what was dealt with. 25. In my judgment, this lack of action was an error. It is clear to me that the Defence Council can only deal with heads which the designated officer has put forward for consideration. This makes sense in circumstances where the designated officer’s legislative role is to filter valid and admissible complaints through to the Defence Council and screen out those complaints which should not be advanced. In consequence, the issue was not dealt with when the service complaint was determined. That body was bound by what was advanced by the designated officer, as was explained in the outcome letter. Naturally, although the claimant raised the issue again in her appeal, the appeal could only deal with the issues considered at the previous stage. It, too, was bound by the complaint as it was defined by the designated officer. 26. Unfortunately for the claimant, this means that the issues caught by these paragraphs did not form part of her service complaint. Considering the case law outlined above, I am satisfied that this means that these paragraphs cannot be sustained before the Employment Tribunal. The claimant was not able, for whatever 9 of 12 reason, to respond to or appeal the omission. From that point, in my judgment, this particular claim was abandoned by the claimant and should be considered to have been withdrawn. Consequently, I consider that I must strike out paragraphs 26(a), 26(a)(i) and 26(a)(ii) of the particulars of claim. Time limits 27. In my judgment, the claimant was aware that she had a potential claim in the Employment Tribunal by, at the latest, 19 October 2018. This is when she was told by Wilkin Chapman that there was a complaint route outside of the service complaint procedure. In my view, it is likely that the claimant knew of a discrimination complaint route in the Employment Tribunal prior to this but understood that the service complaint procedure should have been complied with first. I am satisfied from the timeline and from the claimant’s evidence that she was confused and mistaken about the correct process to bring her claim in time. There has been no deliberate act or omission in the claim not being brought within the primary time limit. 28. In the hearing, the parties spent some time exploring the guidance provided around the interaction of time limits for the employment tribunal and the bringing of a service complaint. It transpired that the guide initially shown to the claimant was an old version, with the correct version being supplied later. To my mind, both versions contain wording to the effect that there are separate time limits for claims bringing in the employment tribunal and so, if read carefully, the claimant was furnished with the information needed to bring a claim in time. The claimant says that she did not read or understand the sections in question. I accept that the guidance could be worded better to make the implications of the advice clear. I can understand why the claimant was confused. 29. Additionally, it is relevant that the claimant was advised by SSAFA, Citizens’ Advice and Wilkins Chapman to bring a service complaint. Nowhere in the bundle was any indication that the claimant was explicitly told that there was a separate deadline, which may well have passed, to bring a claim in the employment tribunal. The claimant sought to place heavy reliance on Wilkins Chapman not advising her about the employment tribunal route in the e-mails outlined above. I make it clear that I do not level any criticism against that law firm. In the usual way, the solicitor in question answered the direct question asked (about the service complaint) and then advised that any further specific advice about the situation would not be given unless it was paid for. The claimant did not then provide instructions for that specific advice, because she says she did not think she needed to, and she remained under the impression that bringing a service complaint was her first (and at that time only) required step.[30]Time limits are in place to be complied with, and it is important that they are complied with. But the ‘just and equitable’ exception to rule a claim ‘in time’ is not the same strict test as applies to other types of claim – the hurdle to clear in order to have your claim ruled ‘in time’ is simply not as high. In my view, the balance of prejudice between the parties is crucial when considering whether to extend time. In these claims, there is an unusual wash upon that consideration thanks to the effect of Williams. Had the claim been brought in time, it would have been stayed in any event until the outcome of the service complaint. That was 17 December 2020, over two 10 of 12 years after the expiry of the primary time limit. The claimant then appealed, in time, on 8 February 2021.[31]Given that the employment tribunal procedure is to follow completion of consideration of the service complaint, I consider it overwhelmingly likely that the claim would have been stayed further, until after the appeal outcome. I do not think it remotely likely that the Employment Tribunal would begin to case manage a claim where the service complaint appeal may resolve it in any event. In mu judgment, then, the claim is very likely to have remained stayed until 21 September 2021. This is not long before the claimant did actually begin the ACAS early conciliation process, on 19 November 2021. Against that likely timeline for conduct of the proceedings, Mr Jupp submits that the delay to bringing the claim has not particularly disadvantaged the respondent at all. He notes that the prejudice to the claimant if time is not extended is severe – she would be unable to have her claim heard in circumstances where the claim appears to be at least tenable on the face of it.[32]In replay, Ms Gray submits that it is too simplistic to plot out a timeline in the way I have done above. In her submission, progress could have been made if the claim was brought and then stayed. At the very least, the respondent would have been on notice that an employment tribunal claim would or may follow the service complaint and the respondent would prepare accordingly. She notes that this application for strike out may not have been made if the claim was brought in time because it is the consideration of the extension of time that has led to the significant delay in the progress of the claim. She notes that it is now 2023 and the claim was brought in late 2021. There has not been any disclosure of documents and a final hearing is, she suggests, unlikely to take place this calendar year. In those circumstances, she says, the prejudice to the respondent is significant due to the passage of time and potential degradation of evidence which could have been secured and preserved previously had the claim been issued and stayed.[33]I accept that there has been delay to this claim. However, I do not consider that the blame for the delay should lie entirely with the claimant. This strike out application is not just about time limit. The respondent made an application to strike out part of the claim on the basis it did not form part of the service complaint. That application was well founded, and was first raised in the ET3 response. I consider it very possible, therefore, that there may have been a strike out hearing in any event to consider that separate claim alone. Further, the respondent applied for the claim to be struck out due to time limits. It did not need to do so, necessarily, and the just and equitable exception could have been considered at a final hearing.[34]Finally, I am not sure it should be right that the respondent will struggle to muster evidence as a result of the delay. The claim has been the subject of a service complaint which has been adjudicated on, referred to the ombudsman, and the subject of an appeal which ended only two months before the ACAS process was started. In my view, there must be ample evidence and information for the claimant’s claim to be considered. The service complaint process must have gathered evidence when it was fresh and considered it, and that evidence is surely available for the Tribunal to take into account alongside hearing directly from witnesses who were involved at the time. 11 of 12[35]In summary, I consider that the claimant was confused about time limits and was not unreasonable by being confused. She brought her claim promptly upon being advised of the time limits for the first time. Due to the interaction of the service complaints process with employment tribunal proceedings, her claim would most probably have been stayed until around the time she brought her claim in any event. There is, therefore, very little delay in reality due to the failure to bring the claim within the six month primary time limit. This means that any prejudice to the respondent attributable to the claimant due to the delay is limited, and that prejudice is unlikely to be as significant as usual as the respondent was completing a quasi-judicial process of its own until just two months before the claimant started ACAS early conciliation.[36]I balance these factors against the overwhelming prejudice faced by the claimant if time is not extended, meaning that she would be unable to pursue her claim, and I consider Mr Jupp’s submissions more persuasive than Ms Gray’s on this issue. I am persuaded to exercise my wide discretion to extend time to bring this claim, so that it is in time, and so that is what I do. Under s123(2)(b) Equality Act 2010, I rule that the claim is brought in time because it is just and equitable to extend time to the point that it was brought.
Disposal
[37]Paragraphs 26(a), 26(a)(i) and 26(a)(ii) of the claimant’s particulars of claim are struck out. The balance of the claims survive.[38]At the end of the hearing, the parties agreed that any surviving claims should be managed at a telephone preliminary hearing, to be listed as soon as possible. That hearing has now been listed, and the parties will be informed of that listing by the Tribunal office.
Introduction
[1]This application for reconsideration was lodged within 14 days of the sending of my reserved judgment, and so it is lodged in time and I have considered it accordingly. The application reached me on 31 may 2023 marked as urgent, so I have dealt with it urgently whilst also taking some time to consider the basis of the application and my response to it.[2]My judgment extended time for the claimant to bring the balance of her claims because I considered it just and equitable to do so. However, it struck out paragraphs 26(a)(i) and 26(a)(ii) of the claimant’s particulars of claim for reasons given in my written judgment. In short, I consider that the matters complained of had not been submitted to the Defence Council, and so they are deemed withdrawn and the Employment Tribunal has no jurisdiction to hear them. Principles of Reconsideration 1 of 4[3]When approaching any application, and during the course of proceedings, the tribunal must give effect to the overriding objective found at Rule 2 of the Rules. This says: “2 - The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable—(a) ensuring that the parties are on an equal footing;(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;(c) avoiding unnecessary formality and seeking flexibility in the proceedings;(d) avoiding delay, so far as compatible with proper consideration of the issues; and(e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.”[4]The power to confirm, vary or revoke a judgment is found at Rule 70. That provides that a judgment can be reconsidered “where it is necessary in the interests of justice to do so”. Rule 71 of the Rules requires that an application for reconsideration is made within 14 days of the written record being sent to the parties. This application for reconsideration is made in time.[5]Rule 72 (1) provides: “An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. …”[6]Where an Employment Judge refuses an application following the application of Rule 72(1), then it is not necessary to hear the application at a hearing. Rule 72(3) provides that the application for reconsideration should be considered in the first instance, where practicable, by the same Employment Judge who made the original decision. I am the judge who made the decision in respect of which the respondent makes his application for reconsideration.[7]The interest of justice in this case should be measured as a balance between both parties; both the applicant and the respondent to a reconsideration application have interests which much be regarded against the interests of justice (Outasight VB Limited v Brown [2014] UKEAT/0253/14). Grounds and reasons of reconsideration application 2 of 4[8]The claimant’s solicitors urge me to reconsider my judgment on the basis that, they say, I have not considered the claimant’s argument to the effect of Regulations 5(3) and 5(4) The Armed Forces (Service Complaints) Regulations 2015. Those regulations provide:- “(3) If the specified officer decides that any part or all of the service complaint is admissible, he must notify the complainant in writing of the decision and refer that part or all of the service complaint to the Defence Council. (4) If the specified officer decides that any part or all of the service complaint is not admissible, he must notify the complainant in writing of the decision, giving the reasons for the decision and informing the complainant of his or her right to apply for a review of the decision by the Ombudsman.”[9]In the words of Leigh Day’s application, “put simply the specified officer must make a positive decision one way or the other and notify the complainant of that decision”.[10]The application repeats Mr Jupp’s submissions to the effect that(1) the specified officer should have notified the claimant that any part of the complaint is inadmissible,(2) that this would allow the claimant to have asked the Ombudsman to review the decision,(3) that the claimant was not told that part of her complaint was inadmissible, and so(4) the claimant had not expressly withdrawn her complaint. The application asserts that “there is no evidence that any decision was made one way or the other on the complaint related to the cancellation of the Medical Board appointment of 9 August 2017” and so “she could not therefore exercise her right of review to the Ombudsman”.[11]The argument advanced by the claimant’s solicitors is that the absence of a decision about this part of the claimant’s claim means that the complaint did not form part of an admissible complaint and so the deemed withdrawal provisions would not apply. In effect, the claimant’s solicitors suggest that the fact it was not put forward as an admissible complaint means that the Employment Tribunal does have jurisdiction to hear this part of the claim and so it is not struck out.[12]It is suggested that Maloudi is not applicable because the regulations now allow for there to be a decision about whether or not a complaint or part of it is admissible, which was not the case then. Decision on the reconsideration application[13]First, I observe that there was evidence before me that the issue was considered by the specified officer and that this part of the service complaint was not put forward as part of the admissible claim. As noted at paragraph 12 of the judgment (quoting from page 96 of the bundle), the service complaint outcome letter includes the passage “you will have noted from the Specified Officer’s (SO) letter of admissibility (22 Mar 19) that your complaint regarding the scheduled Medical Board to assess recovery from an operation was not included. Therefore, I have not included it in this DL”. This letter was not in the bundle, but at no point has the claimant asserted (that 3 of 4 I have seen) that she never received that letter. It did not form part of her appeal, for example.[14]In those circumstances, it was open to me to find, as I did, that this particular part of the complaint was considered and was considered to not be admissible. The claimant did not complain about the decision that it was not admissible even after she had been informed of it in the service complaint outcome (assuming the 22 March 2019 letter had not reached her).[15]Second, in my judgment, Maloudi does remain applicable for the reason given in paragraph 16 of my judgment. The Employment Tribunal has jurisdiction only after a service complaint has been sustained through the service complaint process, and is not withdrawn or deemed to have been withdrawn over the course of that process. A complaint is deemed to have been withdrawn if it is not carried through to the Defence Council (either at a point of first instance or at the point of appeal). .Any different principle would, in my view, negate the purpose of the statutory service complaint process which allows the armed forces the space to consider and deal with service complaints before the Employment Tribunal has jurisdiction to determine those same issues.[16]This application for reconsideration does not offer new evidence or new argument which has persuaded me that it is necessary in the interests of justice to alter my decision. I do not consider, on the wording of s121 Equality Act 2010, that the Tribunal has jurisdiction where part of the complaint made has not been put forward to the Defence Council (as is the case here) and where that decision is not reviewed or appealed. I do not see how that position is different where the claimant was not told about the decision not to put forward part of her claim.[17]In this case, it appears that there was a letter informing the claimant about which heads of claim were to be taken forward. It also seems that the claimant did not seek for that admissibility decision to be reviewed when she was aware of it following the service complaint outcome.[18]Consequently, the application for reconsideration is refused.