United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MISS S MOOR (of Counsel) Messrs Reynolds Porter CHAMBERLAIN Solicitors Chichester House 278/282 High Holborn London WC1V 7HA
For the Respondents	No appearance by or on behalf of the Respondents


 


HIS HONOUR JUDGE CLARK: This is an appeal by the Applicants before the London (North) Employment Tribunal, Ms Glinoer and Mr Pelas, against the decision of a Chairman, Mr D H Roose, sitting alone on 4 June 1998, dismissing their complaints of unfair dismissal, redundancy entitlement and breach of contract brought against the two Respondents on the grounds that the Respondents were immune from suit by virtue of the provisions of the State Immunity Act 1978 (the Act). That reserved decision was promulgated with Extended Reasons on 26 June 1998.

Background

The Appellants, both British Nationals, were each employed by the first Respondent, the Greek School of London, as full-time teachers until their dismissal on 31 August 1996. They then presented Originating Applications to the Employment Tribunal naming the Greek Embassy as sole Respondent.

By letter dated 24 December 1996 the Foreign and Commonwealth Office informed the Appellant's solicitors that the school was not part of the diplomatic mission of the Republic of Greece (the Second Respondent).

Following correspondence with the Employment Tribunal the current Respondents were named and duly served on 7 October 1997.

The school was initially set up to provide education for the children of staff engaged at the Second Respondent's agency. The school roll was then expanded to include children of parents in the Greek Cypriot community in North London and children of the staff of the Greek Airline, Olympic Airways.

Education at the school is free, and the school is funded by the Second Respondent with contributions from the Greek Orthodox Church and small amounts raised by the parents.

The Chairman's Decision

The Chairman identified the issue before him as to whether the Employment Tribunal should give effect to the immunity conferred by section 1(2) of the Act.

Section 1 provides:

"1. General immunity from jurisdiction.

A state is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this Act.

2. A court shall give effect to the immunity conferred by this section even though the state does not appear in the proceedings in question."

There was no appearance by or on behalf of either Respondent.

His conclusion is expressed in paragraph 5 of the reasons thus:

"5. I find that in the circumstances recorded that the respondents are immune from the jurisdiction of the industrial tribunal in respect of these originating applications. The school acted as a representative of the second respondent in this country and was not an office, agency or establishment maintained here for commercial purposes. The applications are accordingly dismissed."

The Statutory Provisions

The general immunity contained in section 1 of the Act is subject to the exceptions contained in section 4 of the Act.

Section 4 provides for contracts of employment:

(1) a state is not immune as respects proceedings relating to a contract of employment between the state and an individual where the contract was made in the United Kingdom or the work is to be wholly or partly performed there.

(2) subject to sub-sections 3 and 4 below, this section does not apply if

(a) at the time when the proceedings are brought the individual is a national of the state concerned; or

(b) at the time when the contract was made the individual was neither a national of the United Kingdom nor habitually resident there; or

(c) the parties to the contract have otherwise agreed in writing.

(3) where the work is for an office, agency or establishment maintained by the state in the United Kingdom for commercial purposes, sub-section 2(a) and (b) above do not exclude the application of this section unless the individual was at the time when the contract was made habitually resident in that state.

(6) in this section "proceedings relating to a contract of employment" includes proceedings between the parties to such a contract in respect of any statutory rights or duties to which they are entitled or subject as employer or employee."

However, section 16 contains exclusions to the exceptions to immunity contained in section 4.

By section 16(1)(a):

"Excluded Matters

1. This part of this Act does not affect any immunity or privilege conferred by the diplomatic privileges Act 1964 or the Consular Relations Act 1968 and (a) section 4 above does not apply to proceedings concerning the employment of the members of the mission within the meaning of the convention scheduled to the said Act of 1964 or of the members of a consular post within the meaning of the convention scheduled to the said Act of 1968."

The Appeal

Miss Moor submits that the Chairman misapplied the provisions of Section 4 of the Act. She challenges the finding that the school is representative of the Second Respondent, but even assuming that it is, she argues that

(1) The proceedings brought by the Appellants are proceedings relating to a contract of employment between the Second Respondent State and the individual Appellants where the contracts were made in the United Kingdom or the work is to be wholly or partly performed there within the meaning of Section 4(1) and (6) of the Act. That is correct.

(2) The exception to the general immunity contained in Section 1 effected by Section 4(1) is not disapplied by the provisions of Section 4(2). The Appellants are not nationals of the Second Respondent, but British Nationals (Section 4(2)(a) and (b); there is no relevant written agreement for the purposes of Section 4(2)(c). Again, we agree.

(3) Section 4(3) operates to nullify the effect of Section 4(2) in the circumstances there set out and to restore the disapplication of state immunity under Section 4(1). The Chairman fell into error by holding that the effect of Section 4(3) was to restore state immunity. In our judgment that submission is well-made. Section 4(3) is irrelevant in circumstances where, as here, Section 4(2) does not apply.

It follows that the Respondents are not immune from suit, subject to the provisions of Section 16 of the Act.

Section 16

The Chairman did not find it necessary to deal with the exclusion provisions of Section 16. We are invited by Miss Moor to do so. It seems to us that we are able to take that course and we find:

(1) The letter from the Foreign and Commonwealth Office establishes that the school is not part of the mission of the Second Respondent. It follows that the Appellants are not members of a mission within the meaning of Article 1 of the Vienna Convention, scheduled to the Diplomatic Privileges Act 1964, and

(2) On the facts there is no question of these Appellants, being employed as school teachers at the First Respondent's school, being attached to a consular post within the meaning of the Convention scheduled to the Consular Relations Act 1968.

Conclusion

It follows, in our judgment, that the Respondents to these complaints are not immune from suit under the provisions of the Act and consequently the appeals are allowed and we direct that the claims proceed to a hearing on their merits before the Employment Tribunal.