Claimant v Secretary of State for Defence
Outcome
Individual claims
Unlawful deduction from wages claims were withdrawn by the claimant and dismissed by Employment Judge Midgley on 17 October 2022.
Less favourable treatment as a part-time worker under regulation 5 of PTWR claims were withdrawn by the claimant and dismissed by Employment Judge Lambert on 24 January 2023.
The tribunal ruled that regulation 13(2) PTWR does not exclude the claimant's right under regulation 7(2) to bring claims of detriment for protected acts relating to alleged infringements of regulation 5 rights, even where those regulation 5 rights were excluded by regulation 13(2). The respondent's strike-out application was refused. The substantive merits of the victimisation claims remain to be determined at a final hearing.
Facts
The claimant, a Petty Officer in the Royal Naval Reserve, performed unpaid activities which he believed should have been paid and alleged less favourable treatment as a part-time worker under regulation 5 PTWR. He made service complaints which were rejected. He then brought tribunal claims for victimisation under regulation 7(2), alleging detriments suffered because of those protected acts. The Ministry of Defence applied to strike out the victimisation claims on the basis that regulation 13(2) PTWR excluded the claimant's regulation 7(2) rights, because his regulation 5 rights were themselves excluded by regulation 13(2) in relation to his service under section 22 Reserve Forces Act 1996.
Decision
The tribunal refused the strike-out application. It determined that regulation 13(2) does not exclude the claimant's regulation 7(2) right to claim detriment for protected acts relating to alleged regulation 5 infringements, even where regulation 5 itself was excluded by regulation 13(2). The tribunal found that such an exclusion would be contrary to the purpose of the victimisation protection and would produce arbitrary results. The claims may proceed to a final hearing.
Practical note
Exclusions in employment legislation protecting specific substantive rights (e.g. part-time worker equality rights for reserve forces) do not necessarily exclude related victimisation protections where workers have alleged infringements of those excluded rights in good faith.
Legal authorities cited
Statutes
Case details
- Case number
- 1401357/2022
- Decision date
- 2 April 2025
- Hearing type
- preliminary
- Hearing days
- 3
- Classification
- contested
Respondent
- Sector
- military
- Represented
- Yes
- Rep type
- barrister
Employment details
- Role
- Petty Officer, Royal Naval Reserve
Claimant representation
- Represented
- Yes
- Rep type
- barrister