United Kingdom Employment Appeal Tribunal

 
MISS RECORDER SLADE:
1. On a preliminary hearing on 14 March 2001 we ordered that this appeal proceed to a full hearing but that the appeal be stayed pending the judgment of the European Court of Human Rights in Fogarty v United Kingdom (Application no 37112/97). In our judgment it was arguable that the provisions of the State Immunity Act 1978 infringe the principles in Article 6 of the European Convention on Human Rights incorporated into our domestic law by the Human Rights Act 1998 in the circumstances which gave rise to this appeal. We expressed no view on the likelihood of success of such an argument.
2. A declaration of incompatibility is being sought. Although, in our judgment, the argument that the Employment Appeal Tribunal has the power to make such a declaration is unlikely to succeed, we permitted it to proceed as being of some general importance.
3. By Note No 100/2001 dated 11 April 2001 the Nigerian High Commission asked the Foreign and Commonwealth Office to:

"…advise The Employment Appeal Tribunal to formally review its Order of 14 March 2001, and proceed to dismiss the Appeal."

The High Commission, whilst asserting that there has been no submission to the jurisdiction of the Courts of the United Kingdom in these proceedings, contended that current appeal 'is clearly unrelated to the pending decision in Fogarty' since the claim in these proceedings is based on alleged breach of contract whereas the claim in Fogarty was based on a potential claim for sex discrimination.

4. The President of the Employment Appeal Tribunal on 10 May 2001 made an Order and in an attached letter of the same date written on behalf of the Registrar gave directions for the conduct of the review.
5. A further Note 141/2001 dated 30 May 2001 from the Nigerian High Commission forwarded by the Foreign and Commonwealth Office restated its position that:

"by virtue of its sovereign status as copiously provided for under the Vienna Convention on Diplomatic Relations 1961 as well as under section 1 subsections 1 & 2; section 4 subsection 2(b); section 16 subsection 1(a) and section 22 of the State Immunity Act 1978; the Employment [Appeal] Tribunal does not have jurisdiction to allow the appeal of Mrs Onwuemene to proceed to a full hearing more so when the High Commission has not at any stage submitted to the jurisdiction of the Employment Appeal Tribunal."

The High Commission stated:

"By writing in these observable terms it was to so invite the Employment Appeal Tribunal, of its own initiative, to review the case and the decisions made in the light of the maintained claim in Law as to State Immunity."

If it is necessary to do so we extend time for this letter to be taken into consideration in determining the review of the Order of 14 March 2001.
6. By letter dated 1 August 2001, solicitors on behalf of Mrs Onwuemene responded to what has been described as 'the Application for a review'. They contended that:

"This is not a situation that properly engages the EAT's jurisdiction to review (Rule 33). The Appellant would submit that the course proposed by the High Commission is inappropriate, in the light of the approach to rule 33 set out in Blockleys plc v Miller [1992] ICR 749, where Wood J emphasised that the jurisdiction was not to be exercised to permit rehearing."

Further they stated that the arguments put forward by the High Commission may properly be received in the appeal without there being a submission to jurisdiction.

7. On 21 November 2001 the European Court of Human Rights gave judgment in Fogarty v the United Kingdom. It held that in her case there had been no violation of Article 6.1 of the Convention.
8. The solicitors for Mrs Onwuemene and the Nigerian High Commission through the Foreign and Commonwealth Office were given the opportunity to make written submissions on the effect, if any, of the Judgment in Fogarty on the question of whether the Order made by the Employment Appeal Tribunal on 14 March 2001 should be reviewed. Those acting for Mrs Onwuemene and the High Commission relied upon their previously stated positions.
9. In accordance with the directions letter of 10 May 2001, we propose to deal with this matter on the papers before us. As suggested in the Note from the Nigerian High Commission dated 30 May 2001, no doubt in order to avoid any argument that it had submitted to the jurisdiction of the court, we consider of our own motion whether the Order of 14 March 2001 should be reviewed.
10. The power of the Employment Appeal Tribunal to review its Orders is contained in Rule 33 of the Employment Appeal Tribunal Rules 1993. Rule 33 provides:

"The Appeal Tribunal may, either of its own motion or on application, review any order made by it and may, on such review, revoke or vary that order on the grounds that-

the order was wrongly made as the result of an error on the part of the Tribunal or its staff; a party did not receive proper notice of the proceedings leading to the order; or the interests of justice require such review."

11. The power of review of the Employment Appeal Tribunal was considered in Blockleys Plc v Miller [1992] ICR 749. Although the Rule under consideration in that case was the predecessor of the 1993 Rule, it is materially indistinguishable from Rule 33. Wood J held at p756E:

"Accepting, as we do, the submissions of Mr Sedley on this point, we construe rule 26(1)(a) of the Employment Appeal Tribunal Rules 1980, as covering the situation where some alteration is necessary to the form of the order made as a result of the judgment and rule 26(1)(c) as being of limited scope intended to repair an error in jurisdiction or a defect in the process of the appeal, or the conduct or procedural unfairness-the absence of due process -the technical correctness of the decision. It is not to allow cases to be re-argued and re-heard."

Morison J in Digital Equipment Ltd v Clements (No 2) [1997] ICR 237 referred to Blockeys in observing at p240B:

"The appeal tribunal has no power to hear an appeal against its own decision, and should not purport to do so."

Whilst he stated at p240B-C:

"Where a decision can be said to have been reached per incuriam, then it might be appropriate to review it rather than require the parties to proceed by way of appeal to the Court of Appeal"

In the absence of argument on the matter at p240D he cautioned:

"…we would not wish this case to be taken as any kind of authority on the jurisdiction issue."

12. The Nigerian High Commission invite us to review our decision on the basis of a reassertion of statutory State immunity and an argument that the judgment in Fogarty would be immaterial to the current appeal as Ms Fogarty's claim was based on an allegation of sex discrimination whereas Mrs Onwuemene's claim is based on an alleged breach of contract. In our judgment these arguments invite a rehearing of the preliminary hearing of the appeal. On a proper construction of Rule 33 and in the light of Blockleys and Digital Equipment the Employment Appeal Tribunal is not satisfied that the grounds upon which it is invited to exercise its review jurisdiction enable it to do so.
13. Accordingly, we decline to review our Order of 14 March 2001.
14. Reflecting the language of the Nigerian High Commission in its Note 141/2001 dated 30 May 2001, we direct that the Order and documentation in this step in the proceedings be entitled:

"Review by the Employment Appeal Tribunal of its own motion under Employment Appeal Tribunal Rules 1993 Rule 33(1) of its Order of 14 March 2001."

15. We express the hope that, as is indicated in her solicitors' letter of 4 February 2002, Ms Onwuemene will be given advice on the effect of the judgment in Fogarty on her appeal.