Soldier on

Ministry of Defence v Debique

Although claims of race and sex discrimination have to be brought separately, the Employment Appeal Tribunal (EAT) has said in Ministry of Defence v Debique that tribunals can consider their combined effects, because discrimination is a “multi-faceted experience” that cannot always be compartmentalised.

Basic facts

Ms Debique, who was from St Vincent and the Grenadines (part of the Commonwealth), joined the British Army in March 2001. In February 2006, after a period of maternity leave, she returned to work in London while her daughter remained in St Vincent. She then brought her daughter back to the UK with her in September 2006.

At this point, it was agreed that she would not have to do weekend duties and that she could start work later on weekdays. In December 2006, her child fell ill and she missed some training. On 16 January 2007 she failed to appear on parade because of childcare difficulties. In February 2007 she was given a formal warning.

She brought a number of grievances, including allegations of sex and race discrimination. In particular, she argued that, as a foreign and commonwealth soldier, she could not take advantage of an army policy allowing her to have an adult relative live with her in services accommodation to help with childcare, as her relatives could only enter the UK as visitors for a maximum of six months.

In the spring of 2007, she was told that the army could terminate her service because of her inability to work on a 24/7 basis. Concerned that she was on "a path to dismissal", Ms Debique decided to resign in April 2007 and subsequently brought claims of sex and race discrimination.

Tribunal decision

The tribunal said that the MOD had applied a provision, criterion or practice (PCP) that required her to be available for duty 24/7. Taking all male and female soldiers in the British Army as the effective pool, it said that women were particularly disadvantaged because they were more likely than men to be single parents with primary childcare responsibility. This constituted indirect discrimination under the 1975 Sex Discrimination Act.

Viewed in isolation, however, it said that the 24/7 PCP was a proportionate means of achieving a legitimate aim. Given that the army needed to be in a state of readiness at all times, this PCP was necessary to ensure combat effectiveness.

It then went on to say that viewing the 24/7 PCP in isolation failed to reflect Ms Debique’s “particular disadvantage” which also included indirect discrimination under the 1976 Race Relations Act. This was because of the “immigration PCP” (which could have been relaxed) barring foreign and commonwealth soldiers from taking advantage of a policy that allowed relations to live with them to help with childcare. This put soldiers of Vincentian national origin at a particular disadvantage when compared with those of British national origin.

Taking the two PCPs together, the tribunal concluded that Ms Debique had been put at a particular disadvantage because she was a 24/7 female soldier with a child; and a woman of Vincentian national origin, for whom childcare assistance from a live-in Vincentian relative was not permitted. If either of the PCPs had been relaxed, the disadvantage would have disappeared, but taken together it did not.

EAT decision

The EAT agreed with the tribunal. It said that although the immigration rules emanated from another Government department, the RRA applied to any acts done under the Crown. For this purpose, the Home Office and the MOD constituted the same legal entity, and as a serving soldier, Ms Debique was in the service of the Crown, by whom the PCP was applied. She just had to show that the Army (i.e. the Crown) had committed an act of discrimination against her, which she had done.

It also agreed that the tribunal had been entitled to consider the combined effects of the PCPs on Ms Debique, not least because discrimination is a “multi-faceted experience” that “cannot always be sensibly compartmentalised into discrete categories”.