Can you claim against the MoD? Unfair dismissal, discrimination, and your rights
Military employment law is dramatically different in a number of ways compared to an individual working for any civilian employer.
It is important for service personnel to understand their rights before embarking on any proceedings against the MoD.
A member of the armed forces whose employment is terminated does not have the right to bring a claim of unfair dismissal. This is because they do not fall within the definition of an “employee” under the Employment Rights Act 1996.
This equally prevents them from resigning in response to a breach of their employment contract or claiming constructive unfair dismissal, and from bringing any other claims which derive from the Employment Rights Act 1996. This is quite a severe limitation.
The Armed Forces are largely exempt from the laws around discrimination on the grounds of both age and disability (two of the protected characteristics under the Equality Act 2010). All other types of discrimination claims on the basis of any of the other characteristics can still be brought by service personnel, however, this does take away two of the more commonly brought types of discrimination claims.
If an individual is seeking to pursue a claim, there are two things to be aware of: service complaints and time limits for making a claim.
The service complaints process should be gone through before a claim can be heard. Service complaints are the military equivalent of a civilian grievance and can deal with practically any issue which the individual has faced during their service. The guidelines for pursuing such a complaint can be found at JSP831.
There is a strict three-month deadline from the date of the incident complained of (or the last in a series of linked incidents) to bring a service complaint, otherwise, it may go unheard.
There is a similar three-month time limit in which an Employment Tribunal claim can be brought. This must still be adhered to, even where the service complaint remains active.
Do not wait for a service complaint to conclude before bringing a claim to the Employment Tribunal, otherwise, it could be rejected. It is likely the claim will be stayed pending the outcome of the complaints process.
Unfortunately, these rules often inhibit individuals from seeking redress regarding any unfair treatment which they may have been subjected to during their service. Whilst these rules are unlikely to change, if an individual knows their rights and how to follow through with any complaint, this can help enormously.
Get in touch with our specialist military lawyers in the employment law team, for expert advice and guidance.
Contact Tom to discuss this further.
