L & Anor v Ministry of Defence [2026] EWCA Civ 602

[2026] EWCA Civ 602Case No CA-2026-000243Case No CA-2026-000247
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(MR JUSTICE LINDEN)
Venue The Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday, 21 April 2026
Before
LORD JUSTICE BEAN(VICE-PRESIDENT OF THE COURT OF APPEAL, CIVIL DIVISION)LORD JUSTICE SINGH
Between
(1) MR LApplicants(2) PAUL DUNNApplicantMINISTRY OF DEFENCERespondentTranscript of Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JETel No: 020 7404 1400 Email: civil@epiqglobal.co.uk (Official Shorthand Writers to the Court)This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.Nicola Braganza KC and Maya Thomas David appeared for ApplicantsNiazi Fetto KC and Harry Peto appeared for Respondent in the first caseNiazi Fetto KC, Julian Allsop and Dr Anna Williams appeared for Respondent in the second caseJudgment(Approved)

Crown Copyright©

[1]The applicants seek permission to appeal against the order of Linden J, sitting in the Employment Appeal Tribunal (“EAT”), dated 23 December 2025, dismissing their appeals against the Employment Tribunal (“ET”) decisions of 21 October 2024 in respect of the first applicant and of 10 July 2024 in respect of the second applicant. In both cases, the applicants formerly served in the armed forces. Mr L was medically discharged for reasons connected with having been diagnosed with human immunodeficiency virus ("HIV"). Mr Dunn left the army under the premature voluntary release provisions but argues that this was caused by mental health conditions including depression.[2]Both applicants sought to bring claims in the ET on the basis that they had been subjected to disability discrimination by the respondent contrary to the Equality Act 2010. Mr L argued that his treatment was contrary to Part 5 of the Equality Act. Mr Dunn argued that his treatment was contrary to section 108 of the Equality Act read with Part 5. In both cases, the ET held that it had no jurisdiction because of the effect of paragraph 4(3) of Schedule 9 to the Equality Act which provides that, "so far as relating to ... disability ... [Part 5] does not apply to service in the armed forces." The ET held that even if that provision is incompatible with the Convention rights in the Human Rights Act 1998 ("HRA"), it would not be possible to read and give it effect in a way which is compatible, applying the interpretative obligation in section 3. The EAT dismissed the appeals as it reached the same conclusion about section 3. It has always been common ground, as it must be, that neither the ET nor the EAT had the power to grant a declaration of incompatibility under section 4 of the HRA. This court, in contrast, does have that power.[3]In an order dated 11 March 2026, I directed that the applications for permission to appeal should be considered at an oral hearing, with the respondent present so that the court could hear brief oral submissions from the parties. We are grateful to all counsel who have appeared at this hearing for that purpose. Mr L requests that the anonymity order in his favour be continued. That order was made for good reason in the tribunals below and, in my view, should be continued. Mr L's case in the ET[4]The case of Mr L was heard by Employment Judge TR Smith sitting in the ET at Newcastle. The ET received documentary evidence but not oral evidence. The parties were agreed that:(1) On 17 July 2017 Mr L had commenced service as a soldier in the British Army.(2) In December 2019 he was diagnosed with HIV.(3) This was a disability within the meaning of section 6 of the Equality Act.(4) His service terminated on 3 October 2022 by way of medical discharge as a direct result of his HIV.(5) Absent his HIV, he would not have been discharged.[5]Counsel for Mr L submitted that applying section 3 of the HRA, paragraph 4(3) of Schedule 9 to the Equality Act should be read as follows:
"This Part of this Act, so far as relating to age or disability other than HIV, 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."
[6]The ET concluded that it was not possible to interpret paragraph 4(3) so as to enable Mr L to bring his claim. On the ECHR compatibility question, the employment judge said that what followed was not strictly necessary to the agreed issues but was included for completeness. The ET then made the following indications as to what its findings would have been had it decided the compatibility question:(1) The circumstances of the case did not fall within the ambit of Article 6 for the purposes of Article 14 because the effect of paragraph 4(3) was to prevent a cause of action existing and, so, there was no civil right or obligation to be determined.(2) The circumstances of the case fell within Article 8 for the purposes of Article 14.(3) The comparison for the purposes of deciding whether Mr L had been treated differently to persons who were in an analogous situation had to be with a member of the armed forces who sought to bring a claim which alleged discrimination related to a protected characteristic other than age or disability -- for example, race -- and so who would have a claim under the Equality Act.(4) If there had therefore been a relevant difference in treatment, this difference would need to be objectively justified.(5) It was not in dispute that the operational effectiveness of the armed forces is a legitimate aim.(6) The judge declined to decide the issue of proportionality. The judge stated at paragraph 164 that it was not for the tribunal then to go on to proceed to make findings on the issues of proportionality for two reasons. Firstly, the fact that Article 8 was within the ambit of Article 14 was irrelevant given the tribunal's primary finding of fact that it lacked jurisdiction. Secondly, it considered that it would need to hear evidence on the issue. Mr Dunn's case in the ET[7]The case of Mr Dunn was heard by Employment Judge Poynton sitting in the ET at Watford. The ET did not hear any evidence and stated that it did not need to make any findings of fact. The following is taken from the ET summary of the factual background. Mr Dunn served as an infantry soldier between 12 September 1988 and 15 February 2001. Mr Dunn left the respondent service under the premature voluntary release provisions. In or around May 2023, Mr Dunn requested that the respondent amend his mode of exit to medical discharge. The respondent's policy provided for a time limit for all retrospective medical discharge of 12 months from the discharge or retirement date. Mr Dunn's request to amend his mode of exit was refused. It is Mr Dunn's case that he suffered from depression caused by bullying in the army and this had led him to apply urgently for voluntary release. This was disputed by the respondent in the ET.[8]Counsel for Mr Dunn submitted that applying section 3 of the HRA, section 108(1)(b) of the Equality Act should be read as follows:
"A person (A) must not discriminate against another (B) if -- "(a) the discrimination arises out of and is closely connected to a relationship which used to exist between them, and "(b) conduct of a description constituting the discrimination would, if it occurred during the relationship, contravene this Act (or would do were the Act not disapplied by paragraph 4(3) of Schedule 9)."
[9]The ET concluded that it was not possible under section 3 of the HRA to interpret section 108(1)(b) of the Equality Act so that Mr Dunn could bring his claim. This meant that the case was struck out on the basis that it was excluded by paragraph 4(3) of Schedule 9 to the Equality Act. The employment judge then stated that he did not need to consider whether Articles 8 and 14 are engaged but that he would note his observations in this regard. The judge doubted that the claimant's is a case where the consequences of the respondent's policy affect the claimant's private life to the very significant degree which would mean that Article 8 would be engaged. The appeal to the EAT[10]In the EAT in Mr L's case, there were four pleaded rounds of appeal. In summary, these were:(1) The ET erred in ruling that it was not possible to read paragraph 4(3) of Schedule 9 to the Equality Act in such a way as to enable Mr L to bring his claim.(2) Given that this was an application to strike out, the ET erred in failing to take the appellant's case at its highest and in misapplying the facts. This referred to the finding of fact which the employment judge had made as to the reason for Mr L's being discharged.(3) The ET erred in finding that the circumstances did not fall within the ambit of Article 6.(4) The ET erred in refusing to address whether the difference in treatment was justified.[11]In Mr L's case, the respondent cross-appealed against the employment judge's finding that the subject matter of the case falls within the ambit of Article 8 for the purposes of determining the compatibility of paragraph 4(3) with Article 14. In Mr Dunn's case, the sole ground of appeal in the EAT was that the judge had erred in law in holding that section 108 of the Equality Act could not be interpreted so as to enable him to bring his claim if Article 14 required it. As to the disposal of the appeal, Mr L invited the EAT to set aside the ET's judgment and substitute its decision on the section 3 issue so that Mr L would be permitted to have his claim of disability discrimination adjudicated upon.[12]With regard to Mr Dunn's case, Linden J understood him to be seeking an order or declaration that section 108 of the Equality Act can, in principle, be read in a way which permitted Mr Dunn to bring his claim and that the matter would then need to be remitted to the ET so as to determine the issue of compatibility with Article 14. Linden J noted that neither party therefore raised the ECHR compatibility question nor any aspect of it before him. He noted that if Mr Dunn's appeal succeeded, counsel for Mr Dunn positively advocated remitting the compatibility question to the ET. He noted that, contrary to her written submissions, counsel for Mr L "appear[ed] to recognise" at the hearing that it would be necessary for the question of justification for difference in treatment to be remitted if the appeal succeeded. Linden J concluded that were he to decide that section 3 would allow the Equality Act to be read so that the applicants' claims could be brought, he would need to remit the compatibility question for determination.[13]With regard to the decision to address the section 3 issue first, he said at paragraph 49 of the EAT judgment:
"These considerations led me to conclude, somewhat against my instincts, that I would take the same approach as had been taken by the employment judges below and by the parties, at least in their pleaded cases and written arguments in the appeal, and determine the section 3 question in both cases first and on the same hypothetical basis ... "
[14]Linden J concluded that it was not possible to read and give effect to the Equality Act so that it gives each or either of these applicants a right not to be subjected to disability discrimination at the time of the acts complained of or at all, and to bring a claim on this basis. The crux of his reasoning was that, considering the legislative history of disability discrimination legislation in the United Kingdom, it has been the long-standing policy of Parliament that the relevant legislation does not apply to the armed forces. Reading the Equality Act so as to reverse this policy would, he said, impermissibly go against the grain of the legislation. A decision to reverse this policy would be for Parliament rather than the courts and would require a decision to amend the Equality Act.[15]Linden J made the following observations with regard to the compatibility issue albeit without finally deciding that issue:(1) Having regard to the legislative history, Parliament has never bestowed protections from disability or age discrimination on anyone in relation to service in the armed forces.(2) Article 6 presupposes the existence of a civil right, as the applicants did not have a right to protection from disability discrimination in this case. Mr L's case did not fall within the ambit of Article 6 for the purposes of Article 14.(3) Linden J was prepared to assume without deciding that the subject matter of Mr L's complaint does fall within the ambit of Article 8. He considered that the position was not necessarily the same in relation to Mr Dunn's case, because the issue of redesignating the basis on which he had been discharged appears to have arisen principally because it affects his pension.(4) Linden J thought the correct comparator for the purposes of the Article 14 analysis would be those in analogous situations who are protected against disability discrimination in the context of work and occupation, ie those who are employees, for the purposes of the Equality Act.(5) Linden J was prepared to assume that prospective, current or past membership of the armed forces comes within "other status" for the purposes of Article 14.(6) The objective justification issue would need to be remitted.[16]Linden J also stated that because Parliament had never conferred protection from disability discrimination for anyone in the armed forces, the ET has jurisdiction in the strict sense that it has the power to determine both of the present cases, but the real issue was whether either claimant had a cause of action in law. Grounds of appeal[17]The applicants seek permission to appeal to this court on four grounds which are the same for both applicants. Ground 1 is split into ground 1A and 1B. In summary, the grounds are as follows: (1A) Ground 1A, or the compatibility issue. The ET and in turn the EAT were wrong not to determine whether paragraph 4(3) of Schedule 9 to the Equality Act and section 108 were compatible with the applicants' Convention rights. Further and alternatively in the second applicant's case, in the context of a strikeout application, the tribunals failed to address the section 3 issue on the basis of an assumed finding of incompatibility. (1B) Ground 1B, or the remittal issue. In the alternative and if unable to determine whether the relevant legislation is compatible with the applicants' Convention rights, the EAT was wrong not to remit this issue to the ET. (2) Ground 2, the violation issue. Further to ground 1 and if not remitted to the ET for determination for the compatibility issue, the EAT was wrong not to conclude that, on an ordinary reading, the legislation violates each applicant's Convention rights. (3) Ground 3, or the reading-in issue. Further to ground 1 and if not remitted to the ET for determination for the compatibility issue, the EAT was wrong to conclude that a Convention-compliant reading of the relevant legislation was not possible. (4) Ground 4, or the declaration issue. Alternatively, this court is now invited to make a declaration of incompatibility as to the relevant legislation under section 4 of the HRA. Relief sought[18]This court is invited to:(1) set aside the EAT's order and find that a Convention-compliant reading is possible, applying section 3 of the HRA; or(2) in the alternative, make a declaration of incompatibility under section 4 of the HRA; or(3) remit the appeals to the EAT or, as we have heard at the hearing today, to the ET directly for the ET to decide whether the relevant provisions violate the applicants' Convention rights. Agreed account of proceedings in the second applicant's case[19]In the second applicant's case, we have received a written agreed account of the proceedings which confirms that in the ET, the second applicant did not expressly ask the ET to determine the ECHR compatibility question and that the EAT was not asked by the second applicant to determine that question. The second applicant did not alert either the ET or the EAT that he would be seeking a declaration of incompatibility in due course. Submissions for the applicants[20]We are grateful to Ms Braganza KC for the written and oral submissions she has advanced in support of the applications for permission to appeal. Before turning to the substantive submissions she makes, she has assisted the court today by outlining the procedural course that was taken below in each of these cases. She informs us that Mr L's case was argued on the basis of evidence that was placed before the ET but that it was the ET itself that decided not to decide the compatibility issue. First, she observes that the respondent itself did make submissions on the question of objective justification. She submits that the applicant did ask the ET to decide the compatibility issue, although she accepts that the order in which the ET decided the issues -- namely, as it put it, to put the cart before the horse and decide the section 3 issue first before compatibility -- was one that was agreed to by all parties. She also submits that it has always been recognised that the importance of this issue was such that it was likely one day to go to a higher court which would have the power to make a declaration of incompatibility. She submits that this court, if permission to appeal is granted, should grapple with the compatibility issue and decide that issue for itself, since it will have all relevant evidence before it. In the alternative, she submits that if it reaches that point, this court should remit the matter to the ET so that findings necessary to the compatibility issue can be made. She submits that the issue is one of general importance and should be determined by this court.[21]In the case of Mr Dunn, Ms Braganza accepts that the procedural history was different. She accepts what is in the agreed account of the proceedings below. The ET proceeded on the basis of an assumption that there was an incompatibility with Convention rights. Ms Braganza accepts that it was not invited to decide the compatibility issue. In the EAT, it was accepted on behalf of Mr Dunn that the issue would have to be remitted. She observes that in the ET, initially the respondent's position was to take a neutral stance but, during the course of the hearing, the respondent agreed to the order that was eventually taken by the ET; in other words, the "cart before the horse" approach. She also suggests that the ET may have been influenced by what had happened in an earlier case called T in which that course had been taken.[22]Turning to the substance of the proposed appeal, the applicants submit that, for different reasons, the ET in each of these cases and the EAT concluded it was not possible, under section 3 of the HRA, to read in words into paragraph 4(3) of Schedule 9 and section 108 of the Equality Act. Alternatively, and in addition in the second applicant's case, both failed to assume incompatibility when considering whether to read in the words proposed. Similarly, neither the ET nor the EAT actually determined the compatibility issue. Ms Braganza accepts that was in error. More specifically on ground 1A, the applicants submit that the HRA requires a finding on the incompatibility of an ordinary reading of the relevant primary legislation as a precondition to the section 3 interpretative obligation. They rely on decisions of the Supreme Court such as R(Z) v Hackney London Borough Council [2020] UKSC 40, at paragraph 114 ,and decisions of this court such as R (McConnell) v Registrar General for England and Wales [2020] EWCA Civ 559, at paragraph 42.[23]The applicants submit that, although they agreed it was permissible to take the "cart before the horse" approach:(1) That did not dispense with the need to make a finding on the ECHR compatibility issue and they say that the ET, in particular, in the case of Mr L, was expressly invited to make that determination.(2) Without deciding whether there is an incompatibility with Convention rights, the tribunal cannot properly address the interpretation exercise.(3) The relationship between section 3 and section 4 of the HRA requires that the section 3 exercise start with a finding on a particular violation of Convention rights produced by the legislative provision.(4) Taking the issues in reverse order did not change the materiality of the ECHR compatibility issue, and the failure to decide this issue amounted to an error of law.[24]On ground 1B, the applicants submit that in the first applicant's claim, the parties had agreed that they had put all the evidence they relied on for the preliminary issues, including the issue of justification, before the ET. They submit that in both cases, if unable to determine whether the legislation is compatible with the applicants' Convention rights, the EAT erred in law in not remitting the case to the ET.[25]On ground 2, the applicants say that if not remitted to the ET, the EAT was wrong not to conclude that, on an ordinary reading, the relevant legislation violates each of the applicants' Convention rights under Article 14 read with Article 8 and/or, in the first applicant's case, read with Article 6. They submit that each test for violation of Article 14 was made out. They argue that the first applicant's case falls within the ambit of Article 6. They argue that the correct comparator for the difference-in-treatment analysis is a member of the armed forces with a protective characteristic other than disability or age. They submit that this court is entitled to determine for itself the compatibility issue. They accept that the operational effectiveness of the armed forces is a legitimate aim, but argue that the exclusion from protection against discrimination in relation to service in the armed forces and post-termination is not a proportionate means of achieving that end.[26]On ground 3, the applicants submit that if not remitted to the ET, the EAT was wrong to conclude that a Convention-compliant reading of the legislation was not possible, applying section 3 of the HRA.[27]On ground 4, the applicants request that if this court is not with them as to the relevant sections being able to have words read in which are Convention-compliant and do not go against the grain of the Equality Act, then this appeal should not be remitted and the court is invited to decide for itself that there is a violation of the Convention rights and make a declaration of incompatibility. In the alternative, as I have mentioned, they submit that this court should remit the matter to the ET for appropriate findings to be made on the evidence.[28]Finally, Ms Braganza has submitted before this court that even if the grounds of appeal do not otherwise have a real prospect of success, there is a compelling reason why these appeals should be permitted to proceed, in particular in view of the general importance of the issues which are raised. The respondent's submissions in Mr L's case[29]We are grateful to Mr Fetto KC who has appeared as leading counsel in both of the two cases before us and made oral submissions in both. He submits that the central question has to be: was there arguably an error of law in the tribunals below? He resoundingly submits that there was not. In both cases, he says the applicant seeks to argue a right of action that does not exist and has never existed since the first disability discrimination legislation was enacted in 1995. He submits that it is helpful to take ground 3 first because that is the ground which alleges that there is an error of law in the EAT. He submits that the judgment of the EAT was unimpeachable and, indeed, determinative of the applications before the ET which were strikeout applications.[30]He draws an analogy with a common law claim for negligence. It is not unusual for a trial court to take the view that, even if a duty of care can be assumed and breach of that duty can be assumed, the case will inevitably fail on the issue of causation. In such an instance, for a court to take the cart before the horse, as it were, is perfectly sensible and open to the court at first instance. By analogy, Mr Fetto submits that the ET was entitled to take that approach in the present cases. He submits that in Dunn, the position is more stark still because, as is clear from the agreed account of the proceedings below, Mr Dunn never invited the ET to determine the compatibility issue, and in the EAT the only issue was the section 3 issue under the HRA.[31]Turning to the details of the proposed grounds of appeal, the respondent submits as follows. In respect of grounds 1A, 1B and 2, it submits:(1) The ET and EAT were entitled to determine the interpretation question prior to the violation question.(2) The ET and EAT were entitled not to make a final determination as to the violation question, as that was rendered academic by their findings as to the interpretation question.(3) The ET and EAT were correct to decide the interpretation question in the respondent's favour.[32]The respondent notes that the parties themselves were agreed that the ET and EAT should put the cart before the horse. They say that allowing Mr L to run his case again would be unconscionable. They submit that any contention that the ET and EAT failed to comprehend that in deciding the section 3 issue as a preliminary issue they were doing so on a hypothetical basis and subject to any subsequent findings of fact which may become necessary is unarguable. They argue that there is no principal reason why the approach taken represents any error of law, and that cases which make clear that a violation of the Convention is a condition precedent to the interpretation obligation in section 3 do not hold or determine that the approach taken in these proceedings was wrong.[33]The respondent submits that the ET and EAT were correct to hold that this case does not fall within with the ambit of Article 6. As to ground 3, the respondent submits that it is not reasonably arguable that paragraph 4(3) of Schedule 9 to the Equality Act can be interpreted as argued, applying section 3 of the HRA.[34]On ground 4, the respondent submits that the claimant has no right of appeal by virtue merely of this court's power to make a declaration of incompatibility and, indeed, that this court has no power to make a declaration of incompatibility in the absence of any legal error by the tribunals below. The respondent's submissions in Mr Dunn's case[35]In relation to Mr Dunn's case, the respondent submits:(1) The critical flaw with the proposed grounds 1A, 1B and 2 is that the second applicant expressly urged the ET to follow the approach which had been taken in the case of T.(2) The so called "cart before the horse" approach is entirely in keeping with the general approach to strikeout determinations before the ET in which the second applicant's case is taken at its highest.(3) The EAT was never asked by the second applicant to determine the question of compatibility.(4) Grounds 1A, 1B and 2 raise an entirely new point which is contrary to the way in which the second applicant put his case both before the ET and before the EAT. In that regard the respondent relies on the decision of this court in Singh v Dass [2019] EWCA Civ 360.(5) On ground 3, the respondent submits that Linden J's reasoning is detailed, cogent and correct.(6) On ground 4, the respondent submits that the request for a declaration of incompatibility has no real prospect of success. This court cannot make the factual determinations that would be necessary to make a declaration. The consequences of tactical decisions made by the second applicant are not capable of being undone by way of further appeal to this court.(7) Further or alternatively, the respondent submits that the court cannot make a declaration of incompatibility where there has been no error of law by the ET or the EAT.[36]Finally, Mr Fetto submits that there is no other compelling reason to grant permission to appeal. He submits that that is not a separate basis for the grant of permission. There has to be some error of law which it is said has been committed by the tribunal below even if a real prospect of success test is not met. He concludes by submitting to this court that if this court were otherwise against the respondent and the section 4 issue does need to be addressed, the basis for such a declaration is simply not there in terms of factual findings and there would inevitably have to be remittal to of the EAT. He also points out the respondent would then wish to file evidence on that issue. For example, in the case of Dunn, there simply was no evidence on the compatibility issue filed. My assessment: ground 3[37]I will consider ground 3 first as that is the only ground that was actually before the EAT and raises the interpretation question under section 3 of the HRA. In my judgment, the reasoning of Linden J on this question is clear and compelling. He was undoubtedly correct to conclude that it is not possible to read paragraph 4(3) of Schedule 9 to the Equality Act in the way that either applicant contends. To accept the applicants' invitation to do so, however strong and unusual the interpretative obligation in section 3 of the HRA is, would be tantamount to judicial legislation, not interpretation. Those interpretations would go against the grain of the Equality Act and would contradict a fundamental feature of it, which is that disability discrimination provisions do not apply to service in the armed forces. Indeed, it would require this court to interpret the relevant provision to mean the opposite of what it says.[38]As Linden J observed, that has always been the policy decision which Parliament has adopted ever since the first disability discrimination legislation was enacted in 1995. To take a different view would raise wide-ranging policy questions which are for Parliament and not for the courts, for example, to what extent and in what circumstances the disability discrimination provisions should apply to service in the armed forces. It is not a simple binary question. Accordingly, I have reached the conclusion that ground 3 is not reasonably arguable and has no real prospect of success. Grounds 1A, 1B and 2[39]Like Linden J, my instinct would be not to adopt the "cart before the horse" approach taken by the ET, but I can understand why they did so, especially in the light of the agreed approach that was urged by the parties. There can be good pragmatic reasons for taking such a course, especially as it may save time and costs. The authorities appear to cast doubt on the "cart before the horse" approach. See, for example, Z v United Kingdom (2001) 34 EHRR 97 in the Supreme Court, the decision of this court in Poplar Housing & Regeneration Community Association Limited v Donoghue [2001] EWCA Civ 595, at paragraphs 75 and 73 in the judgment of Lord Woolf CJ, and the decision of this court in R (Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605 which concerned the coronavirus lockdown regulationsat paragraph 106 of the judgment of this court, which was delivered by Lord Burnett CJ.[40]Nevertheless, we are where we are and the question is whether this court should now grant permission to appeal on grounds 1A, 1B and 2 despite the procedural history of these two cases. In my view, because the applicants accept that they agreed that the section 3 issue could and should be decided first and that it was determinative, they should not now be permitted to appeal on the basis that the ET or EAT should also have determined other issues. It is not reasonably arguable that the tribunals below erred in law and, so, grounds 1A, 1B and 2 have no real prospect of success. Ground 4[41]The potential difficulty in these cases arises because, as is common ground, this is the first court which has the power to grant a declaration of incompatibility under section 4 of the HRA. This is not always fatal. A recent example where the appellate courts were able properly to consider whether to make a declaration of incompatibility is provided by Mercer v Alternative Future Group Limited (Secretary of State for Business and Trade intervening) [2024] UKSC 12: see, in particular, paragraph 109 in the judgment of Lady Simler.[42]However, in view of the procedural history of the present application, this court would not now have the factual findings necessary to make a declaration of incompatibility in this case or the full evidence before it. There is likely to be a problem, particularly in the case of Mr Dunn, because the ET did not make sufficient findings of fact to determine the compatibility of the relevant legislation with the applicant's Convention rights. Further, in terms of the proportionality analysis, evidence would also be required as to the broader implications of allowing disability discrimination claims to be brought in the context of service in the armed forces. This is because what would be in issue is not just proportionality in these two individual cases but the proportionality of a general legislative measure; indeed, a measure in primary legislation.[43]The only realistic outcome would be for this court to remit the issue of compatibility to the tribunal of fact, ie the ET. But that would be inappropriate, in my view, for several reasons. First, the appeals otherwise have no real prospect of success. Second, I do not think that it would be appropriate to give permission to appeal only on ground 4. The tribunals below did not err in law in not granting a declaration of incompatibility. Indeed, they would have been wrong to do so, as they have no power to make such a declaration. Third, this situation has come about as a result of tactical decisions which the applicants themselves took in the proceedings below. Accordingly, I have reached the conclusion that none of the grounds of appeal has a real prospect of success. I cannot see that there is any other compelling reason why an appeal should be considered by this court. I would therefore refuse permission to appeal.[44]Although this is a permission decision, pursuant to para 6.1 of the Practice Direction (Citation of Authorities) (Sup Ct) [2001] 1 WLR 1001,I would certify that it should be capable of citation in view of the general importance of the issues raised.

Lord Justice Bean:

[45]I agree.

Order

Application refused Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400 Email: civil@epiqglobal.co.uk This transcript has been approved by the Judge