Regulation 11(2) required those recruited over the age of 18 to serve a four-year notice period before becoming entitled to transfer to the reserves. However, those recruited under the age of 18 were obliged to serve the same notice period from the date of their 18th birthday. This essentially meant that an individual recruited on his 16th birthday would have to serve six years before a transfer entitlement accrued.
The Court ultimately held that the Equal Treatment Directive 2000/78/EC, art 3.4 had given member states complete discretion in deciding to derogate from the provisions, where the armed forces were at issue. This derogation power was unlimited, and the Court did not accept that an implicit proportionality requirement existed. The Community Legislator had chosen to give member states an unrestricted discretion, and given the national security implications, this was understandable. The Court did suggest, however, that outrageous discrimination would be impermissible, based on the concepts of ultra vires in UK law and ‘abuse of rights’ in EU law.
The Court also rejected the claimant’s argument that the Equality Act, Sch 9, para 4(3) did not comply with the derogation requirements.
Finally, the Court rejected the argument that the claimant did not have standing to bring this claim, and recognised that it had acted in good faith and with a sense of responsibility.
David Wolfe QC was involved in this case.