Rubery (Appellant) v Ministry of Defence (Respondent)

Permission to Appeal application lodged

Case summary
Permission to Appeal
Previous proceedings

Case summary

Case ID

UKSC/2026/0024

Parties

Appellant(s)

Anne-Bernadette Rubery

Respondent(s)

Ministry of Defence

Issue

Is section 121 Equality Act 2010 (EA 2010) compatible with Article 6 and/or Article 14 Human Rights Act 1998 (HRA 1998)?

Facts

The appellant served in the RAF for over 30 years and continues to serve as a RAF Squadron Leader and Personnel Support Officer. In September 2018, the appellant made a service complaint to the Ministry of Defence, alleging that she had been subject to bullying and discrimination, amongst other things. The Ministry of Justice dismissed the appellant’s complaint without an oral hearing over two years after the complaint was made. The appellant alleges that the complaint was dismissed in terms that were pejorative and unsustainably critical of her. In December 2020, the appellant appealed the outcome of her complaint through the service complaints procedure and requested an oral hearing. That request was refused. In April 2021, the Ministry of Justice dismissed her appeal, except that it was found that the delay in deciding the initial complaint amounted to maladministration. In June 2021, the Claimant made a complaint to the Service Complaints Ombudsman for the Armed Forces. The Ombudsman upheld the complaint and recommended a moderate consolatory payment. On 9 July 2021, the appellant brought a claim in the Employment Tribunal (ET) alleging that she was subject to discrimination whilst undergoing IVF treatment by three senior RAF officers, and later subject to discriminatory comments by a fourth officer during the subsequent investigation of her service complaint in breach of section 19 EA 2010 (indirect discrimination) and section 27 EA 2010 (victimisation). The Ministry of Defence advanced in its Defence a preliminary jurisdictional issue, namely that section 121 EA 2010 precludes the ET from considering the appellant’s claims relating to the conduct of the investigation of her service complaint. The ET held, following a hearing of the preliminary issue, that section 121 EA 2010 was inconsistent with Article 6 and 14 HRA 1998. The ET therefore read section 121 EA 2010 in a way that allowed the appellant to bring her claim in the ET. The Ministry of Defence appealed to the Employment Appeal Tribunal, which allowed the appeal, holding that section 121 EA was compatible with the appellant’s rights under the HRA 1998. The Court of Appeal dismissed the appeal. The appellant now appeals to the Supreme Court.