England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice Strand London, WC2
		Monday, 19th May 2003

1. LORD JUSTICE PETER GIBSON: I will ask Lord Justice Buxton to give the first judgment.
2. LORD JUSTICE BUXTON: This appeal concerns the application of recent authority of the European Court of Human Rights; of this court; and, to a certain extent, of the House of Lords; to the particular position of a serving soldier who seeks to assert through the English judicial structure a claim of race discrimination arising from that service. It impacts particularly, indeed almost exclusively, on the position under such a claim of Article 6 of the European Convention on Human Rights.
3. The facts relevant to this appeal can be briefly stated. Mr Mangera was a serving soldier for more than 10 years. For the major part of that time -- according to his evidence, some 8 years and 8 months -- he did not receive in his rations any halal meat. That was an arrangement that he says discriminated against him because of his race. He also claims that he in fact had to pay under army regulations for part of his food, food that he was not able, because of his race, to partake of.
4. The case is brought under the Race Relations Act 1976, and more particularly under Part 2 thereof which is headed "Discrimination in the employment field". Mr Mangera complains under section 4(2) of the Act, which reads as follows:

"(2) It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee-

(a) in the terms of employment which he affords him; or

(b) in the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or

(c) by dismissing him, or subjecting him to any other detriment."

There is no doubt that these provisions apply in general terms to serving soldiers, as they do to anybody else in employment.

5. In the particular facts of Mr Mangera's case, for my part I find some difficulty in fitting his complaint into the precise wording of section 4(2). But I am content for the purposes of this appeal to proceed on the assumption that he can at least complain that to withhold halal meat from him was to subject him to a detriment under section 4(2)(c). In any event, the Ministry of Defence, the respondent, has not taken any point in that connection.
6. The jurisdiction to deal with complaints under Part 2 of the Act is to be found in section 54 of the Act. The jurisdiction is restricted to bringing a complaint in an Employment Tribunal. There is an important limiting provision in respect of such complaints in the case of discrimination in relation to service in the forces. That is to be found in section 75(9) of the Act, which provides that no complaint in relation to services in the forces shall be presented to an Employment Tribunal under section 54 unless:

"(a) the complainant has made a complaint to an officer under the service redress procedures applicable to him and has submitted that complaint to the Defence Council under those procedures; and

(b) the Defence Council have made a determination with respect to the complaint."

7. It is therefore clear that originally a soldier, not only was required to complain to the Defence Council before he could go to the Employment Tribunal, but also had to await the determination of the Defence Council on his complaint.
8. No doubt because that was thought to be a somewhat limiting provision, section 75(9A) was introduced, which enables regulations to be made that effectively alter the pre-requirement for presentation of complaints. The relevant regulation is now the Race Relations (Complaints to Industrial Tribunals) (Armed Forces) Regulations 1997, which, with commendable brevity, provides that a soldier may present a complaint to, as it would be now, an Employment Tribunal under section 54, notwithstanding the provisions of section 75(9) that I have just set out, where:

"(a) he has made a complaint in respect of the same matter to an officer under the service redress procedures; and

(b) that complaint has not been withdrawn."

9. It is therefore now accepted that all that a soldier has to do before he can go to the Employment Tribunal is to present a complaint. He does not have to await the Defence Council's determination on that complaint. As soon as he has presented the complaint, he can go to the Employment Tribunal.
10. Mr Mangera's difficulty is that he did not take that step. It appears that if the arrangements made under Parliament's authority for the presentation of complaints are lawful he is now excluded from complaining to the Employment Tribunal.
11. The enquiry which we are concerned with, therefore, is whether Article 6 of the Convention entitles him to pursue this claim, irrespective of the fact that he has not presented an earlier complaint. In other words, whether the provisions that I have set out are compliant with Article 6; and more particularly with the jurisprudence under Article 6 that concerns the right of access to a court.
12. We have considered this question, with the agreement of counsel, as a preliminary question of general import. I shall deal with it in those terms. However, I think it would be wrong if I did not say -- on a point on which, I emphasise, we have heard no argument -- that I have some considerable hesitation in thinking that, even if Article 6 does apply to this case in general terms, it would be right to say that the very limited precondition that is now placed upon the bringing of applications to the Employment Tribunal does indeed represent an inhibition or interruption of a right of access to a court in terms of the Article 6 jurisprudence. But, as I say, we have not been addressed on that point. We are concerned with a more general submission that Article 6 does not apply at all to complaints under section 4(2) brought by public servants generally, and more particularly by serving soldiers.
13. I turn immediately to recent authority of the European Court of Human Rights, Pellegrin v France (2001) 31 EHRR 651. As Lord Phillips of Worth Maltravers MR observed in paragraph 18 of the judgment of this court in Matthews v Ministry of Defence, a case to which I shall have to return, the approach and jurisprudence of Pellegrin appears to some extent unfamiliar to a common lawyer. That is because it creates special and exclusionary rules in respect of proceedings brought by public servants. In so doing, it appears to draw inspiration, or at least some form of close or distant parentage, from the view of some civil law countries, in particular the view of the law of the French Republic, that disputes with regard to the service and employment of civil servants are matters of public rather than of private law. It was against that background that the court in Pellegrin held, to put it shortly for the moment, that disputes about the service of civil servants are outside the reach of Article 6. In so finding, the court in Pellegrin enunciated no new principle so far as the jurisprudence of the European Court of Human Rights is concerned.
14. I think I do not need to go into the particular facts. If we turn to paragraph 59, the court quotes previous authority which it interprets as holding that:

"disputes relating to the recruitment, careers and termination of service of civil servants are as a general rule outside the scope of Article 6(1)."

That was a direct quotation from the judgment of the court in Massa v Italy (1994) 18 EHRR at paragraph 26 of the court's judgment.

15. The court in Pellegrin was concerned to consider, within the ambit of that general principle, who counted, in jurisprudence of the European Convention, as a "civil servant". The court refers to various authority and previous disputes as to the status, level and functions that it was necessary to demonstrate before the rule already set out applied to a particular public servant. It says in paragraph 63 that the purpose of its judgment is to establish an autonomous interpretation, in accordance with the normal approach in Convention jurisprudence, of that particular expression. The solution that the court reached, as set out in paragraph 64, was that it should adopt:

"a functional criterion based on the nature of the employee's duties and responsibilities."

Various indicia are given as to how that broad test might be applied. One can imagine, one is bound to say, a good deal of room for argument in some cases within the court's general formula. But that does not apply in our case because, in paragraph 66, the court said quite clearly:

"A manifest example of such activities [activities engaging the interest of the state] is provided by the armed forces and the police."

There has been no suggestion in our case, nor in view of those observations in Pellegrin could there be, that Mr Mangera does not fall within the category of public servant for the purposes of the Pellegrin rule. That, in the view of the court, leads to what is an extremely broad rule stated in paragraph 67 of the judgment:

"no disputes between administrative authorities and employees who occupy posts involving participation in the exercise of powers conferred by public law attract the application of Article 6(1) ..."

That statement on its face clearly excludes the case of Mr Mangera, who has a dispute between an administrative authority, the Ministry of Defence, and himself in his capacity as employee.

16. Faced with that considerable difficulty, Mr Thacker, who has argued this appeal on behalf of Mr Mangera, said that the case must be approached in a different way. Mr Mangera's dispute was not an ordinary employment dispute. Indeed, on one view, it was not an employment dispute at all. It is about discrimination on grounds of race; a matter that engages very fundamental considerations of human rights; a matter in which Mr Mangera is given specific protection by the legislature of this country. The observations of the court in Pellegrin should not be read as excluding a dispute of that type from the control of Article 6.
17. I would not seek to question or undermine the force, in very general terms, of those observations. But I cannot accept their relevance to this case, for reasons connected not only with the general approach of the European Court of Human Rights, but also with the way in which, rightly or wrongly, the law in this country has chosen to articulate and enforce provisions against racial discrimination.
18. This matter has very recently been considered, at least in terms of discussion, by this court in Matthews v Ministry of Defence. There a sailor in the Royal Navy suffered a physical injury. It was what one might call, without depreciating it at all, an ordinary common law claim; but his right to bring a claim for that injury in the civil courts, which any other citizen would have been able to do had they not been a serviceman, was held to be barred by section 10 of the Crown Proceedings Act 1947.
19. The court had to consider, amongst other things, whether the jurisprudence of Pellegrin excluded a serviceman from asserting a claim of the sort that Mr Matthews wished to assert. Lord Phillips dealt with this at paragraph 31, when he said this:

"31. The issue is whether a member state can preclude servicemen, or any other public servants, from asserting claims against the state in tort, or, if we correctly understand the effect of [counsel's] submissions, any other civil claims arising from events during their period of service, without infringing article 6. For reasons which will become apparent, it is not necessary for us to resolve this question. Our firm opinion is, however, that the judge was right in restricting the effect of the decision in Pellegrin v France to disputes relating to conditions of service."

20. Lord Phillips is there making it plain that what he says is, in a strict sense, obiter. But I do not need to say that a recent, considered and unanimous observation of another constitution of this court on such a point is not one that we should depart from lightly.
21. Going forward, Lord Phillips points out that there is no authority which has applied Pellegrin to claims in delict, and quoted the observation of the European Court of Human Rights in Fogarty v United Kingdom at paragraph 28:

"The Court recalls that in [Pellegrin v France], it adopted a functional test for the purposes of determining the applicability of article 6(1) to employment disputes involving public servants, based on the nature of the employee's duties and responsibilities. An employment dispute is excluded from the scope of article 6(1) if it concerns a public servant whose duties typify the specific activities of the public service in so far as he or she acts as the depository of public authority responsible for protecting the general interests of the state."

This court then continued, at paragraph 33 of its judgment:

"33. This suggests that the court consider that the decision in Pellegrin v France 31 EHRR 651 applies only to 'employment disputes'. We do not believe that the Strasbourg Court intended the Pellegrin criterion to exclude claims in tort from the application of article 6."

22. Armed with those observations, Mr Thacker argued before the Employment Appeal Tribunal that Mr Mangera's claim was in fact analogous to a claim in tort of the sort referred to by Lord Phillips. Before us he went somewhat further, as I understood it, and said that it was actually itself a claim in tort, or at least not just an employment dispute.
23. In support of that view he cited some observations in this court in the case of Sheriff v Klyne Tugs (Lowestoft) Ltd [1999] ICR 1170, in which it is quite true that reference was made to the right created under section 4(2) of the 1976 Act as being a "statutory tort". We are familiar with other sources in which such a characterisation has been used. In my view, however, it is quite clear that that expression is merely a colloquial and perhaps convenient way of referring to the admittedly somewhat unusual way in which this aspect of racial discrimination was brought into our law in 1976.
24. The offence of discrimination there created however is not and cannot be a common law tort in the sense plainly used by Lord Phillips in Matthews. That is because there is no general right in our law not to be discriminated against. That right, important though it is, is enforced only in particular situations, of which employment is one. That is why, in order to promote this case at all, Mr Mangera has to rely on a section of the Act headed "Discrimination in the employment field", and has to pursue the complaint through an Employment Tribunal. The right is created by inserting particular obligations into the employment relationship. I emphasise, not into the contract, but into the employment relationship. It is that that makes the Employment Tribunal the appropriate tribunal to consider the complaint.
25. There can therefore be no doubt that this particular obligation of the employer does fall within the employment relationship, and relates to what, in the terms adopted by this court in Matthews, is an employment dispute. It has no status and no existence other than in the employment context.
26. So far as Article 6 is concerned, the rules of that Article and the jurisprudence that it introduces act upon the machinery for enforcing the particular rights created by domestic national law. Article 6 does not itself create such rights. Nor can it alter the nature of the rights that the national law provides. That latter point was decided in this court in Matthews, and decided as a matter of ratio and not merely as obiter observation.
27. I would also venture to refer to a short passage in the speech of Lord Bingham of Cornhill when the Matthews case reached the House of Lords, [2003] 2 WLR 435 at 437. In paragraph 3 Lord Bingham sets out effectively an agreed statement of the relationship between the national law and the Strasbourg jurisprudence. In the course of that he said this:

"the Strasbourg case law is emphatic that article 6(1) of the Convention applies only to civil rights which can be said on arguable grounds to be recognised under domestic law; it does not itself guarantee any particular content for civil rights in any member state ..."

28. Thus the rights created by the national law are taken as a datum. In this case the right is an employment right and no more. That, and no more than that, is what the substantive law of England has chosen to provide. It is that right that Pellegrin addresses, and it is that right that Pellegrin categorises as a right relating to disputes between public servants and their employers.
29. Mr Thacker took to us some authority under the law of the European Union, latching on to the fact that when considering the question of who counts as a civil servant, which is the only question directly addressed in Pellegrin, the European Court of Human Rights referred to some jurisprudence of the European Union in relation to the possible exemption under Article 48 (as it then was) of employment in the public service.
30. I fear I found that jurisprudence and the cases shown to us of no help at all in deciding the question before us. The question that the European Court of Justice was addressing was the extent, if at all, to which member states could obtain exemption from the rules on free movement of workers by the creation of particular posts in the national civil service that were barred to nationals of, or persons who had worked in, other member states. That has, I fear, absolutely nothing to do with the question we are concerned with.
31. Mr Thacker also relied on the fact that the combination of the jurisprudence of Pellegrin and the approach in the 1976 Act could produce very wide exclusions from the normal means of recourse in this country. He said that the implication was that even when a civil servant can get in front of an Employment Tribunal (as Mr Mangera is not able to) he apparently has no Article 6 rights at all during the actual proceedings. That of course does not mean to say that he does not have a whole raft of rights created by domestic law, which largely overlap with his Article 6 rights; but the point in general terms is nevertheless striking. It seems that it might be open to a member state (though one doubts if a signatory to the Convention would ever see fit to do so) to exclude civil servants from bringing any legal proceedings about racial or sexual discrimination. As I say, that is something that is difficult to contemplate. The Directive (not yet implemented but shortly to be so) shown to us by Mr Thacker is likely to prevent that happening at least in the case of member states of the European Union: in the unlikely event of any government of a mature democracy, such as are the members of the Union, wishing to take such a course.
32. But these possibilities arise from two singular features of the underlying law. First of all, as I have already said there is no general tort in English law of discrimination; and secondly, that the European Convention on Human Rights shows its origin in the world of 1950 in this respect, by not making any general provision against discrimination on grounds of race, gender or sexual orientation; considerations that would now be thought, as they were not in 1950, to be of central importance in any human rights charter. But what we have implemented in this country is the European Convention and not something different and more generous, and it is that Convention that this court applies.
33. Because of these considerations, however, Mr Thacker boldly argued that we should either reject Pellegrin altogether, or at least reject it so far as it impacted on claims complaining of racial and sexual discrimination. I fear that that argument, bold as it was, indeed went too far. First of all, it is far from clear to me that the solution adopted in Pellegrin was so obviously inequitable that we should consider departing from it. But even if that were not the case, it is a recent and considered judgment of a Grand Chamber of the European Court of Human Rights of the type that this court made clear in the case of R (Anderson) v Secretary of State for the Home Department [2002] 3 WLR 1800 it would be very hesitant indeed to depart from, even in a case where this court had significant doubts as to whether the outcome was correct or justified.
34. Secondly, there was no suggestion in the Matthews case, either in the Court of Appeal or in the House of Lords, that Pellegrin was not a case to be given full weight. True it is that nobody argued the present point. But nonetheless I would have great difficulty in departing from Pellegrin, in view of the fact that the case has been considered in this court, without any criticism, only one year ago.
35. I therefore would hold that Article 6 does not apply to a case of the kind brought by Mr Mangera. It follows that he cannot rely on Article 6 to set aside the disability from bringing proceedings that is provided by the 1997 Regulations.
36. We were, originally, also asked to consider the impact of Article 14; that is to say whether, despite the law as set out above, Mr Mangera's case falls within the "ambit" of Article 6. Both this court and the European Court of Human Rights has found it possible in the case of Articles of the Convention that deal with very broad social questions, of which Article 8 is the most obvious example, to find that situations fall within the ambit of an Article even though they do not in fact involve any breach of it. I need only cite as examples in the European Court of Human Rights Petrovic v Austria 33 EHRR 307; and in this court Ghaidan v Mendoza [2003] 2 WLR 478. But Article 6 is, as one might put it, hard-edged. It bites on particular proceedings, and not on general ideas of justice. It was properly conceded by Mr Thacker, therefore, that if Article 6 did not apply to this case because of the jurisprudence of Pellegrin, Article 14 could not so apply either. That concession was rightly made. Mr Linden drew our attention to the admissibility case of Duman v Turkey, application 42788/98, which would appear to support that view.
37. I would therefore dismiss this appeal on what effectively was a preliminary point with regard to the impact of Pellegrin. Mr Mangera cannot pursue his claim in the Employment Tribunal.
38. LORD JUSTICE TUCKEY: I agree.
39. LORD JUSTICE PETER GIBSON: I also agree.

ORDER: Appeal dismissed with costs until the appellant became publicly funded; the costs after that not to be enforced without an order of the court; public funding detailed assessment; permission to appeal to the House of Lords refused.

(Order not part of approved judgment)