United Kingdom Employment Appeal Tribunal

APPEARANCES

For the Appellants:

 

Mr M Ali, Mr M Solieman and Ms Saad Mrs M Taja Mrs El Masry	MR M WESTGATE (of Counsel) Instructed By: Messrs Thompsons Solicitors Congress House Great Russell Street London W1B 3LW IN PERSON IN PERSON
For the Respondent:	MR A McCULLOUGH (of Counsel) Instructed By: Messrs Travers Smith Braithwaite Solicitors 10 Snow Hill London EC1A 2AL


 


HIS HONOUR JUDGE PROPHET:

1. Mr Al-Kadhimi and 9 others lodged complaints which led to an Employment Tribunal (ET) hearing at London Central, with Mr Menon as the Chairman and Miss McIntosh and Mr Eggmore as the lay members, on 10 and 11 October 2001 followed by a chambers meeting on 12 October 2001. The essence of their unanimous reserved decision, promulgated on 26 November 2001, was that all complaints failed because of the application of the State Immunity Act 1978. That decision, with extended reasons, sets out fully the background and facts which is not necessary to repeat here.
2. A Notice of Appeal was lodged at the Employment Appeal Tribunal on 3 January 2002 in respect of 8 named persons, ie the 10 original complainants excluding Mrs Masry and Ms Saad. Those named persons are clearly valid appellants for the purposes of today's hearing.
3. However, Mr McCullough of Counsel on behalf of the respondent has drawn our attention to the position of Mrs El Masry who has attended here today unrepresented as an appellant, although she was not a complainant before the Menon Tribunal. What we have discovered is that her complaint to the ET was considered separately at a hearing before an ET at London North (as it then was) on 30 April 1999 before a Tribunal with Mr Rabin as the Chairman, ie well before the Menon Tribunal. Her complaint failed because the Rabin Tribunal reached a similar conclusion to the later Menon Tribunal. However, there is no trace of an appeal having been lodged by Mrs El Masry against the decision of the Rabin Tribunal. When the matter of the current appeal came before Mr Justice Burton for further directions on 21 November 2002, it appears that neither side alerted the President to the inclusion of Mrs El Masry as an appellant.
4. We are satisfied that no valid notice of appeal has been forthcoming from Mrs El Masry in respect of the Rabin Tribunal's decision and that she was not a party to the Menon Tribunal. Consequently, whilst we can appreciate that Mrs El Masry has been receiving letters as though she is an appellant to these proceedings, in truth she is not. Regrettably therefore we are unable to regard her as a proper appellant for the purpose of today's proceedings.
5. Mr McCullough has also queried the position of Ms Saad. Our investigations today have revealed that Ms Saad who was, of course, a proper applicant at the Menon Tribunal, submitted a purported Notice of Appeal to the EAT which, although dated 2 January 2002, was received by this office, according to the letter of reply, on 16 January 2002. It was indicated in the letter of reply that the absence of any grounds of appeal in that Notice meant that it could not proceed as a valid Notice of Appeal. She was invited to submit grounds, but there was no response.
6. However, when an amended Notice of Appeal was duly submitted by Messrs Thompsons in October 2002 in respect of the Notice already lodged with the EAT on 3 January 2002, Ms Saad was included, notwithstanding that she was not on the Schedule attached to the original Notice of Appeal. Again, no one alerted the EAT to that, or sought permission for Ms Saad to be included, bearing in mind that time had long passed for the appropriate time limits to be met. Although the EAT thereafter continued to assume that Ms Saad was a proper appellant, the onus was clearly on her representatives to ensure that she could properly be regarded as such.
7. Whilst Mr Westgate, of Counsel on her behalf has tried energetically today to have her appeal considered on its merits, even to the extent of applying for her Notice of Appeal to be validated many months after it was rejected as a proper Notice, the position must be that there is no valid Notice of Appeal from her and that the principal responsibility for that rests on her advisers. Therefore, again regrettably, we are unable to regard her as a valid appellant today.
8. That removes what would otherwise have been an interesting area of consideration for us, having regard to Ms Saad having included in her Originating Application a complaint of sex discrimination which potentially exposed the respondent to a possible claim for injury to feelings. That is an issue which may have to be determined on another occasion.
9. Mr Westgate represents only 3 of the appellants, ie Mr Ali, Mr Solieman and Ms Saad. What we have said in the preceding paragraphs reduces those to 2 for the purposes of considering the merits of the appeal. The other valid appellants are all unrepresented and we have taken care during today's hearing to ensure they have been offered opportunities to add to Mr Westgate's submissions, which otherwise they are content to adopt.
10. Insofar as Mr Westgate was intending to advance arguments on behalf of Mr Ali and Mr Solieman in respect of whether compensation for personal injury consequential upon their dismissal could be claimed (which the Employment Tribunal held was not possible) those submissions have been overtaken by the judgment of an Employment Appeal Tribunal chaired by the President of the EAT, Mr Justice Burton in the three cases headed by Dunnachie v Kingston upon Hull City Council (EAT/726/02), the judgment having been delivered on 22 May 2003 (now reported at [2003] IRLR 384) Mr Westgate has realistically recognised that that removes the plank from under him in that particular respect and accordingly we have adjourned further consideration of that part of the appeal generally with liberty to apply should the Court of Appeal or the House of Lords reverse the Dunnachie judgment. That adjournment also takes effect in appropriate cases for the unrepresented appellants.
11. And so we turn to the part of the appeal to which we have had to give most of our attention today. Put in a nutshell, Mr Westgate and the unrepresented appellants say that the ET was wrong in law to conclude that the Respondent was not estopped from asserting State Immunity. That raises the legal issue of whether the doctrine of estoppel can ever apply in such a situation. We have been presented with a sustained submission by Mr Westgate of Counsel in support of the proposition that it can and we have endeavoured to take account of all that he has said. If we do not record each and every part of his submission and the authorities to which he has referred, we trust that he will accept that we have not overlooked any essential part of it. Also one of the unrepresented appellants, Mrs Taja has submitted a note on the estoppel point which we have considered.
12. Mr Westgate has, on the face of it, to surmount an initial hurdle in advancing his proposition that estoppel could be drawn in aid. In the case of Ahmed v The Government of the Kingdom of Saudia Arabia [1996] ICR 25, where matters were very similar to our case, the issue of estoppel was mentioned by Peter Gibson LJ in the Court of Appeal. He said this (at page 33):

"The point on estoppel was not raised by the applicant and was not supported by her before the Employment Appeal Tribunal, nor before us, no doubt because it is clearly established that an industrial tribunal may not enlarge its jurisdiction on the basis of estoppel: see Secretary of State for Employment v Globe Elastic Thread Co Ltd [1979] ICR 706."

13. It has to be accepted that that was essentially an observation only, since estoppel was never pleaded in that case. Now that it is, the question nevertheless remains – Was Peter Gibson LJ essentially correct in regarding Globe Elastic as preventing estoppel from operating in the particular circumstances? Mr Westgate, in an ingenious argument, says that estoppel would not in this particular situation enhance the jurisdiction of the ET. The way the State Immunity Act operates means that the jurisdiction of the ET to consider unfair dismissal, or indeed any other cause of action in employment law, remains the same. The Act is merely procedural, not jurisdictional.
14. Mr McCullough says that is wrong. We agree with Mr McCullough. The State Immunity Act may be somewhat odd when applied to employment matters, because in essence it first confers immunity (s.1), then restores it for employment contracts (s.4) and then reverses that (s.16(1)). However, the effect, where s.16(1) applies, is that the ET is precluded from hearing the case on its merits. That forms a jurisdictional bar to the powers of the Tribunal to hear the merits of the case. It follows that, contrary to Mr Westgate's submission, it would add to those powers if, notwithstanding the statutory bar, the ET could still accept jurisdiction to hear the merits of the case.
15. Mr Westgate, utilising in particular the judgment of the Court of Appeal in Shah v Shah [2001] 4 All ER 138 has satisfied us, and indeed Mr McCullough, that it is not necessarily an absolute bar to the operation of the doctrine of estoppel that there is a statute to construe. The matters to weigh up are as indicated by the Court of Appeal in that case. We can see that the reference to social responsibility might well be regarded as embracing employment matters. However, this is a situation where there are relations with States to consider, and it is not one in our view where the very strict provisions of the State Immunity Act can properly be circumvented through a rule of evidence.
16. We have decided unanimously therefore that this appeal on the grounds of the application of the doctrine of estoppel should be dismissed. It is, however, right that there can be no doubt that these former employees were grossly misled in 1991 by the circulation to them by the Military Attaché of the Embassy of the letter of 16 November 1990, which appears to indicate that they could, if necessary, pursue employment law rights to industrial (now employment) tribunals. It is therefore understandable that they will retain a strong sense of grievance which this judgment will do little to remove.