O'Loughlin v Ministry Of Defence [1997] UKEAT 850_97_3110

EAT

O'Loughlin v Ministry Of Defence

[1997] UKEAT 850_97_3110 · 1997-10-31

MR JUSTICE MAURICE KAY: : This is the preliminary hearing of an appeal by Miss O'Loughlin against a decision of an Industrial Tribunal Chairman sitting alone in Southampton on 23 May 1997.

Miss O'Loughlin joined the Army. She did so following a recruitment interview carried out, we shall assume, by a 34 year old male Sergeant. She enlisted on 21 May 1996 and began her recruitment course in July 1996.

In August 1996 she had confirmation that she was pregnant and she asserts that one of the Army Recruitment Officers is the father of the child and indeed, has acknowledged paternity. She was offered maternity leave by the Army but elected to resign on 1 November 1996. No suggestion has been made at any stage, on behalf of Miss O'Loughlin, that the sexual intercourse that gave rise to her pregnancy was anything other than consensual, nor does she suggest that the Army engineered her own decision to resign. Her application to the Industrial Tribunal was under the Sex Discrimination Act 1975 .

In essence, what she was seeking to establish was this. In the Army there are regulations which govern relationships between homosexual members of the Armed Forces, be they male or female. There are no comparable regulations seeking to govern heterosexual sexual relationships between male and female soldiers. It is her case that that discrepancy manifests and creates a circumstance of sex discrimination. She asserts that since 90% of recruits to the Army are male and only 10% female, she and others in her position are subjected to sex discrimination.

When that submission was made in the form of her application to the Industrial Tribunal, circumstances arose whereby the Industrial Tribunal had to decide, pursuant to Rule 13(2)(d) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 , whether her application should be struck out on the ground that it was scandalous, frivolous or vexatious. To cut a long story short, when the matter came before the Chairman, sitting alone, on the date to which we have referred, he struck it out and it is against that decision that Miss O'Loughlin now seeks to appeal.

In approaching his task, the Chairman referred to Rule 13(2)(d) and added:

"In order to determine whether the Applicant's claim is 'frivolous' I have asked myself whether it can be said that it has any prospect of success."

He then considered that very issue, adverting to some aspects of the evidence. He added:

"I am not persuaded that the absence of Army regulations to 'protect female recruits and privates against predatory male heterosexuals' could conceivably represent an act of discrimination by this Respondent against this Applicant. The argument that the absence of such regulations can be contrasted with the Army's regulations relating to homosexuals, is misconceived."

And in the final paragraph of the decision he added:

"For these reasons, I find that the Applicant's claim is manifestly misconceived and can have no prospect of success. It is, therefore, frivolous within the meaning of Rule 13(2)(d) and I order it to be struck out."

In this Appeal Tribunal we are concerned only with the question of whether any point of law has been identified which might have some arguable prospect of success in a final hearing. We are unanimously of the view that the decision of the Chairman, sitting alone, was in accordance with the law and was correct. We agree with his judgment that the application was misconceived.

There being no point of law which, in our judgment, is arguable so as to have any prospect of success, it would be inappropriate to permit this appeal to go any further and it is hereby dismissed.