Claimant v Secretary of State for Defence

The tribunal struck out the allegation that Group Captain Lewis Cunningham asked the claimant on 3 May 2023 whether she had reached conclusions in the NSI because she is female. GC Cunningham was not mentioned in the service complaint form and this allegation only appeared for the first time in paragraph 103 of the record of interview. The tribunal found the claimant had not made a service complaint about this matter within the meaning of section 121 EA 2010, so the tribunal has no jurisdiction.

The tribunal struck out the allegation that Group Captain Yates said on 15 May 2023 that comparing the claimant and a male colleague was like comparing apples and oranges. Although this comment appeared in the ROI, it was not expressed as an allegation of direct sex discrimination against GC Yates but as background to concerns about Air Cdre Burns' appraisal process. GC Yates was cited as a witness, not as someone who had wronged the claimant. The tribunal found this was outside the heads of complaint agreed with Lt Col Drysdale and would have required a fresh service complaint under regulation 8.

The allegation that Air Cdre Burns said on 8 August 2023 that he could 'feel the emotion' when the claimant raised concerns about her OJAR, implying she was not being rational, was found to be within the scope of the service complaint. The tribunal considered this was a further detail about why the claimant believed Air Cdre Burns had discriminated against her in respect of the 2021-22 appraisal and peer group ranking. The tribunal has jurisdiction to consider this claim.

The allegation that Air Cdre Burns failed to recommend the claimant for a third reporting officer (3RO) appraisal after receiving a recommendation from Group Captain Yates in December 2022 was found to be within the scope of the service complaint. The tribunal found this was the kind of detail Lt Col Drysdale had in mind when she indicated that further details could be provided during investigation. Reading the complaint as a whole, it should have been apparent this was part of why the claimant considered Air Cdre Burns had treated her unfavourably and discriminated against her. The tribunal has jurisdiction to consider this claim.

The allegation that the respondent applied criteria in assessing the claimant's performance (clear leadership, strong staff work, EQ, IQ, PQ and need to be more competitive than peers) that resulted in unfavourable treatment due to pregnancy or maternity leave was found to be within the scope of the service complaint. The claimant referenced these metrics in the service complaint at p197 and provided further detail in the ROI at paragraph 71. Looking at the service complaint and ROI as a whole, it ought to have been apparent to the decision maker that this was part of how the claimant said she was wronged. The tribunal has jurisdiction to consider this claim under section 18 EA 2010.

The allegation that the respondent subjected the claimant to indirect sex discrimination by appraising her against criteria/metrics (clear leadership, strong staff work, EQ, IQ, PQ and need to be more competitive than peers) was found to be within the scope of the service complaint. At paragraph 113(iv) of the ROI, the claimant expressly asserted that the metrics broadly referred to would place females at a disadvantage. Looking at the service complaint and ROI as a whole and reading them in a non-technical manner, it ought to have been apparent that the claimant was saying these metrics placed women in general and her in particular at a disadvantage. The tribunal has jurisdiction to consider this claim under section 19 EA 2010.

The claimant alleges victimisation due to protected acts, namely her role in leading and authoring the NSI into RAFAT (the Red Arrows) which revealed unlawful acts under the Equality Act 2010. The respondent accepts that the allegation of victimisation due to her authoring of the report on RAFAT is part of the matter complained of in the service complaint. The tribunal has jurisdiction to consider this claim, although the preliminary hearing focused primarily on jurisdictional questions about which specific allegations were included in the service complaint.