Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University. As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal. At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.
Equality Act 2010 was not reinterpreted to allow for disability discrimination claims in relation to work for the armed forces.
The claimants were former members of the army. They brought a claim for disability discrimination. L had been medically discharged following diagnosis of HIV. For D he was discharged on the basis of premature voluntary release but he sought it to be redesignated for discharge on medical grounds.
The Tribunal struck out the claims on the basis that they were barred under Schedule 9, Paragraph 4(3) of the Equality Act 2010 which stated that disability discrimination did not apply to service in the armed forces. The claimants appealed that decision.
The claimants argued that Schedule 9, Paragraph 4(3) would have to be read in compliance with the ECHR. L argued that it should be interpreted so that it would be disability other than HIV. D argued that there should be an insertion into Section 108, relating to disability discrimination generally, which would mean that it would not be disapplied by Schedule 9, Paragraph 4(3).
The EAT dismissed the appeals. The EAT outlining that when amendments were made to the Disability Discrimination Act 1995 to ensure compliance with the 2000/78 Directive there was no change to the derogation relating to service in the armed forces. This was continued with the Equality Act 2010. It was thus a long-standing policy of Parliament that disability discrimination did not apply to service in the armed forces – the legislation could not be read to reverse that policy. That would be a matter for Parliament rather than the courts.
This demonstrates the fact that the Tribunals have to bear in mind the policy decisions that are made by Parliament. In this case, the policy was clear over the development of the legislation and it was therefore not for the courts to seek to reverse that policy. This ensures some certainty from the legislation and is a point to be considered when an argument is made for an interpretation to be made in light of human rights provisions.
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