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Mohinderpal Sethi wins important indirect sex and race discrimination appeal against MOD

In the opening words of her judgment in MOD v DeBique, in which Mohinderpal Sethi appeared for the successful Claimant, Mrs Justice Cox observed:

'this appeal raises interesting questions of both race and sex discrimination law, and of the interplay between the relevant statutory provisions'.

The Claimant was a female soldier in the British Army, from St. Vincent & the Grenadines, who was also a single parent with a young daughter. The ET found that two provisions, criteria or practices were applied to her by the MOD, namely that she be a soldier available for deployment on a 24/7 basis (the sex PCP); and also that she could not have a member of her extended family (a half-sister) to stay with her in the Service Families Accommodation because she was a foreign national only entitled to stay in the UK for a short period under a Home Office immigration rule (the race PCP).

The ET found that these PCPs, 'when combined', put (or would put) women and persons of the same national origins as the Claimant at a particular disadvantage when compared with men and persons not of the Claimant’s national origins, in fact subjected the Claimant to that disadvantage, and had not been shown to be a proportionate means of achieving a legitimate aim. Accordingly, the ET upheld the claims under both the Sex Discrimination Act 1975 and the Race Relations Act 1976. In dismissing the MOD's appeal, the EAT provided much welcome clarification and guidance on various aspects of indirect sex and race discrimination law and the interrelationship between the two Acts as well as their application to Crown employment.

Mohinderpal Sethi was instructed by Julie Morris, Partner at Russell Jones & Walker.

For a case summary prepared by Sam Nicholls of Devereux Chambers, click here (opens a Word document).

For the full text of the EAT judgment, click here.

Ministry of Defence v DeBique, EAT, 12 October 2009.