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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Jayetilleke v High Commission Of The Commonwealth Of The Bahamas [1994] UKEAT 741_94_1412 (14 December 1994)
URL: http://www.bailii.org/uk/cases/UKEAT/1994/741_94_1412.html
Cite as: [1994] UKEAT 741_94_1412
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At the Tribunal
THE HONOURABLE MR JUSTICE MUMMERY (P)
LORD GLADWIN OF CLEE CBE JP
MR J C RAMSAY
JUDGMENT
PRELIMINARY HEARING
Revised
APPEARANCES
For the Appellant MR M H A THOMSON
47 Moat Drive
Harrow
Middlesex HA1 4RW
MR JUSTICE MUMMERY (PRESIDENT): This is the Preliminary Hearing of an Appeal against the Decision of the Industrial Tribunal held at London (North) on the 21st June 1994.
The Tribunal had before it a Preliminary issue on jurisdiction arising in proceedings for Unfair Dismissal and Race Discrimination brought against the High Commission Commonwealth of the Bahamas by Ms Jayetilleke.
She started proceedings by presenting an Originating Application to the Industrial Tribunal dated the 2nd August 1993. The Tribunal unanimously decided, for reasons sent to the parties on the 28th June, that they had no jurisdiction to consider her claims on the grounds that they were covered by the State Immunity Act [1978].
Ms Jayetilleke was dissatisfied with the Decision and she appealed by Notice of Appeal received at the Employment Appeal Tribunal on the 12th August. The purpose of the Preliminary Hearing is to decide whether there is a point of law which could be argued on a full appeal. If there is no reasonably arguable point of law, there is no point in the proceedings continuing to a full appeal.
At the hearing today, Mr Thomson has appeared on behalf of Ms Jayetilleke and has presented an argument based on a point which was not raised, either in the Industrial Tribunal or in the Notice of Appeal. In order to understand the new point, it is necessary to say more about the background to the Decision under appeal.
The Tribunal set out the facts and legal issues with admirable conciseness. The position of Ms Jayetilleke was that she is a British Citizen of Asian origin. She started work with the High Commission of the Bahamas in December 1985. Her position was that of a Senior Accountants Clerk. She was dismissed in 1993 for alleged misconduct. She alleged Unfair Dismissal and Racial Discrimination.
The Respondents, through their solicitors, claimed state immunity. The Tribunal upheld the claim to state immunity relying on a combination of Section 4 and Section 16(1)(a) of the State Immunity Act [1978]. They referred to the Vienna Convention, which provides that members of the staff of a Mission within the meaning of the Convention are members of the Diplomatic staff if they are part of the administrative and technical staff of the Mission.
It was accepted by the Applicant, as it is accepted by Mr Thomson, on her behalf, that she was employed in the office in London, as a Senior Accounts Clerk. As such she was a member of the administrative staff. The immunity therefore applied irrespective of nationality. In the light of that immunity, the Tribunal would have no jurisdiction to hear the proceedings. The claim had to be dismissed.
Mr Thomson accepts that the reasoning based on the State Immunity Act [1978] is unimpeachable. He is not therefore pursuing the grounds of appeal stated at grounds 1 and 2. Those grounds were that the Tribunal had acted in error of law in finding that the Mission, within the meaning of the Vienna Convention, included the Applicant, and that the Tribunal had in some way misapplied the Provisions of Section 16.
Mr Thomson wishes to obtain amend the Notice of Appeal, to raise an entirely new ground based on the European Convention on Human Rights. The amendment proposed is that the Tribunal was in error, in that it failed to consider the European Convention on Human Rights. If it had considered the Convention, it would have found that the Decision on immunity would be a breach of Articles 1, 61 and 13 of that Convention.
The Decision of the Tribunal should not conflict with the Convention. A denial of justice would be suffered by Ms Jayetilleke if her appeal was dismissed on the ground that she was not entitled to a hearing in view of the immunity conferred by the State Immunity Act.
There is no ground at all for criticising the Tribunal on this point. The Tribunal had no appearance from the Applicant and only short, written representation from the Respondent. The question of the European Convention on Human Rights was never raised by either side.
Notwithstanding a detailed and interesting Skeleton Argument prepared by Mr Thomson on behalf of his client, elaborating the grounds of the complaint based on the European Convention on Human Rights, we are of the view that no arguable point of law is raised by this argument.
The Reason for that conclusion is this. The European Convention on Human Rights is a Treaty to which the United Kingdom Government is signatory. But the Convention and its provisions have not been incorporated into English Law. There is a fundamental difficulty in the Appellant seeking to rely on provisions of the Convention in order to counteract the express provisions of primary legislation in the form of the State Immunity Act [1978].
The fact that a right recognised by the Convention may be infringed by legislation of a member state, is a matter which may be raised by an individual with the Commission and, if the case is allowed to go forward, with Court. It is not a matter that can be raised in the courts of this country, save in limited circumstances, for example, as an aid to interpretation of ambiguous legislation, or as an aid to determining the scope and application of a common-law right. The fact is that the Articles in the Convention are not part of English Law and cannot therefore be relied upon by the Appellant on this Appeal.
Mr Thomson put it an alternative way: what Ms Jayetilleke was seeking to rely on, as enshrined in the Convention, is in fact a fundamental right of common law, namely, a right of access to courts and Tribunals for the purposes of having disputes decided in accordance with the law. That right was infringed by the Tribunal's grant of immunity to the Respondents.
Mr Thomson's difficulty with this argument is that the common law can be qualified or abrogated by primary legislation. Primary legislation made by Parliament can override the common law. Primary legislation, in the form of the [1978] Act, has provided that certain classes of people, Institutions, or entities are entitled to immunity from proceedings in Tribunals and in courts of law.
Mr Thomson referred to the importance of a balancing act, balancing, on the one side, the claims of public interest in comity of nations and, on the other side, the rights of individuals, fundamental rights to have access to Tribunals and courts. The difficulty with this submission is that we are not free to conduct a balancing act. That balancing act has already been conducted in Parliament. The determination of Parliament has been that, in certain types of cases, the public interest in comity of nations in granting immunity outweighs, for certain cases, the rights of individuals.
No doubt Ms Jayetilleke will feel a grievance and a sense of injustice at being denied access to the Industrial Tribunal for her claim. We have to deny her access in obedience to the State Immunity Act. The Common Law and the European Convention on Human Rights cannot be relied upon to counteract the express provisions of the legislation.
There is no arguable point of law. The Appeal must be dismissed.