In the first claim, Mr L was discharged for reasons connected with the fact that he had been diagnosed with human immunodeficiency virus (“HIV”). He alleged that his treatment was contrary to Part 5 of the 2010 Act. In the second case, having been discharged from the armed forces on the basis of ‘premature voluntary release’, Mr Dunn sought a retrospective redesignation of the basis on which he had left service to ‘discharge on medical grounds’. This was refused. He alleged breach of section 108 of the 2010 Act, read with Part 5. In both cases, the Judges first considered whether the relevant provisions of the 2010 Act could be interpreted so as to give effect to the ECHR assuming that Article 14 required that the claimant before them was able to bring his disability discrimination claim (“the section 3 question”). And in both cases they held that the 2010 Act could not be interpreted so as to achieve this result. The claims were therefore struck out. That being so, neither Judge went on to reach a final conclusion on whether paragraph 4(3) of Schedule 9, and/or section 108 of the 2010 Act, read literally, are in fact incompatible with the ECHR (“the ECHR compatibility question”), although both expressed views on aspects of this question.. The Claimants appealed and the MoD cross appealed.

The EAT dismissed the appeal, agreeing with the conclusions of the Employment Judges in both Mr L and Mr Dunns’ cases that it is not ‘possible’ to read and give effect to the Equality Act 2010 so that it gives each or either of them a right not to be subjected to disability discrimination at the time of the acts complained of or at all, and to bring a claim on this basis. Essentially this was because the longstanding policy of Parliament has been that the relevant disability discrimination legislation does not apply to service in the armed forces. The 2010 Act cannot be read and given effect in a way which reverses this policy. Such a decision would be for Parliament rather than the courts and it would require a decision to amend the statute, whether to confer disability rights on people with HIV or more generally, and whether in relation to prospective, current or past members of the armed forces.