The Queen's Shilling

The days of press gangs are passed but it seems to me that the rules governing service in the Armed Services are ripe for an update.

An officer is commissioned to serve the Crown pursuant to the Royal Prerogative. Officers of Her Majesty's forces do not have any contractual relationship with the Crown. This principle which was approved in Leaman v R [1920] 3 K.B. 663 is that all engagements between those in the military service of the Crown and the Crown are voluntary only on the part of the Crown, and give no occasion for an action in respect of any alleged contract.

The extent of the Royal Prerogative in modern days has been the subject of judicial analysis by the House of Lords in 1985 who expressed the view that the concept of an ‘irresistible and absolute’ prerogative was old fashion. In the light of the more recent changes to UK law as a result of the Human Rights Act (HRA) and the Equal Treatment Directive it has become clear that the prerogative is not absolute. The armed forces can be challenged where the individual can bring his or herself within the Human Rights Act or the Equal Treatment Directive.

The question of a contract between the officer and the Crown has recently been looked at in Newell v Ministry of Defence [2002] EWHC 1006 where Elias J restated the applicable law concluding that there is no contract between the officer and the Crown.

The issue of an unfair dismissal claim was considered by the Court of Appeal in Melbourne v Ministry of Defence [2002] EWCA Civ 754. The Court approved the reasoning of the Employment Appeal Tribunal in Melbourne v Ministry of Defence [2002] EAT/522/00.

The Employment Appeal Tribunal reviewed the state of the law and concluded that a member of the armed forces could not bring a claim for unfair dismissal (see para 2 – 4). The Employment Rights Act 1996 (ERA) does make provision at S 192 ERA for this but the section has not yet been made into law. The present position remains that members of the armed services cannot bring claims under the ERA.

The Court of Appeal looked at the application of the HRA. The conclusion was the same. Article 6 of the HRA was not breached. There is a detailed analysis of the point in para 17 – 20. In should be noted that one attack was on the non-implementation of S 192 ERA but this failed (see para 20).

A serving officer is allowed to seek redress and does so utilising the Redress of Individual Grievances: Service Complaints. Note this procedure must be completed prior to any action being launched for race or sex discrimination in the Employment Tribunal.

There is no external appeal in respect other ‘employment type’ claims other than Judicial Review. This route is available as Taylor LJ pointed out in R v Army Board of the Defence Council [1991] ICR 537 at 550 that as the complaints procedure is the only means of addressing fundamental statutory rights for members of the armed forces the complaints procedure needs to be operated with a high degree of fairness.

In short once you have accepted the Queen's Shilling you are at her command with no right to claim a breach of contract, non-payment of wages, unfair dismissal or many other forms of redress which arise out of the regular employment relationship.

Peter D