United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr A Speaight (One of Her Majesty's Counsel)
For the Respondent	Mr D Reade (One of Her Majesty's Counsel) Instructed by: Commonwealth Secretariat Marlborough House Pall Mall London SW1Y 5HX


 


SUMMARY

Practice & Procedure – Jurisdiction

Is it open to a Tribunal to strike out a claim of discrimination on the grounds of sex and race brought against the Commonwealth Secretariat by a contract worker because the Secretariat has claimed immunity from suit? A claim that to do so would infringe Article 6 rights, and that the Secretariat was bound as a public authority to waive immunity, was rejected. Observations as to whether the Secretariat is indeed a public authority, for the purpose of applying E.U. or Convention jurisprudence.


 


THE HONOURABLE MR JUSTICE LANGSTAFF

1. This case raises the question whether the Commonwealth Secretariat enjoys immunity from proceedings before the Employment Tribunal.
2. It arises by way of an appeal against a decision of a chair of the employment Tribunal for London (Central). She determined in a reserved decision of 16 December 2005 that the Tribunal had no jurisdiction to determine the Appellant's complaints of post employment discrimination relating to a consultancy contract which she undertook for the Commonwealth Secretariat in 2001 and 2002. This decision followed an earlier decision to the same effect made by a chair (Mr Pearl) at a pre hearing review on 19 September 2005. His decision succinctly said:-

"The claimant's claims are struck out, there being no jurisdiction to entertain these claims against the respondent."

3. A review was sought, on the ground that the Appellant did not receive notice of the hearing. Mr Pearl ordered a review.
4. The decision under appeal before me was the decision upon that review, which was heard by Ms. Cook. In more detailed reasoning than given by Mr. Pearl, she too struck out the Appellant's claim on the basis that there was no jurisdiction.
5. Both chairs relied upon the provisions of Section 1 and Schedule 1 of the Commonwealth Secretariat Act 1966.
6. By Section 1, that Act states, under the heading "The Commonwealth Secretariat, its privileges and immunities":-

"(1) The Commonwealth Secretariat shall have the legal capacity of a body corporate

(2) The Commonwealth Secretariat shall have the privileges and immunities conferred by Part I of the Schedule to this Act…"

7. The Schedule to the Act provides, under the heading "Immunities and Privileges" under Part I as follows (so far as material):-

"(1) The Commonwealth Secretariat shall have immunity from suit and legal process except–

(a) in respect of a civil action for damage alleged to have been caused by a motor vehicle belonging to, operated on behalf of the Secretariat or in respect of a motor traffic offence involving such a vehicle: and

(b) in respect of arbitration proceedings relating to any written contract entered into by or on behalf of the Secretariat"

Part III , paragraph 8, provides supplementally: -

"The privileges and immunities conferred by this Schedule on the Commonwealth Secretariat, its officers and servants and members of their families may be waived by the Secretary-General or any person for the time being exercising his functions."

8. In this case, there has been no waiver of jurisdiction. Indeed, immunity has been asserted. The response made to the Appellant's claims, although containing a final ninth paragraph denying any discrimination, and thereby denying the substantive merits of the claim, asserted centrally the immunity which is now in dispute before me.
9. The Appellant was not represented before the Tribunal. She thus did not deploy arguments with the facility and skill with which Mr Speight Q.C. has advanced them on her behalf in this appeal. The Tribunal concluded, at paragraph 8 of its decision as follows:-

"Ms Jananyagam has expressed the view that the operation of the Human Rights Act 1998 or the provisions of European Law may be relied on in assisting her to dis-apply the provisions of the Commonwealth Secretariat Act. She has submitted that we should postpone consideration of the jurisdiction point to a future hearing to allow her to bring legal representation. I cannot agree. This is the second occasion on which the respondent has presented legal submissions on jurisdiction. It would not be proportionate to the issue to postpone for a third hearing. I am satisfied that on the face of Section 1 Schedule 1 (sic) of the Commonwealth Secretariat Act 1966, this Tribunal does not have jurisdiction to hear the claimant's claims, and I confirm the original decision made by Mr Pearl on 19^th September 2005."

The Appellant's Submissions

10. Through Mr Speight Q.C., the Appellant submitted that although on its face the effect of paragraph 1 of the Schedule to the Act of 1966 was that the Secretariat was entitled to claim immunity in this case nonetheless this should not lead to a striking out of her case. There were four steps to this argument: first, that the Commonwealth Secretariat is a "Public Authority" within the meaning of Section 6 Human Rights Act 1998. Second, a State or International Organisation (the Commonwealth Secretariat being an example of the latter) is not obliged to claim immunity: indeed, it has the specific power of waiver. Third, to claim waiver would be to act in a manner incompatible with the European Convention on Fundamental Rights and Freedoms. So to act would deprive the Appellant of her normal right to a court under Article 6. Fourth, the Appellant was entitled to rely on a Convention right in proceedings such as the present, and was entitled by Section 7 of the Human Rights Act to rely in any legal proceedings upon the Convention right or rights asserted. Since by Section 8 of that Act a court is entitled to grant such relief or remedy, or make such order within its powers as it considers just and appropriate in relation to any act or proposed act of a public authority, the court had power to take an appropriate step in the present case. Such a step would be to refuse the strike out which had been claimed, and thereby to permit the case to continue.
11. I observe immediately that what I am being invited to do is effectively to confer jurisdiction to hear a claim (for that would be the consequence of taking the fourth step suggested in this argument) in the teeth of a statute which expressly provides that the respondent has immunity from such suit and proceedings. By the route suggested, the court would be failing to apply words of a statute which are clear and do not permit in themselves of the exception claimed.
12. I am not asked to make a declaration that the provisions of the Commonwealth Secretariat Act 1966 in so far they provide for immunity from suit should be declared incompatible with the provisions of the Convention: nor do I have the power, in any event, to do so in this Tribunal.
13. The consequence, however, is that I am asked to consider whether there is an interference with Article 6 rights which the Appellant would otherwise enjoy were it not for the claim of immunity. This necessarily involves a consideration of the underlying facts of her case, since the right is an individual one, and if the court is to grant relief or remedy which is, as asked, "just and appropriate" it must be just in, and appropriate to, the particular circumstances of the case before it. Accordingly, although Mr Speight opened his submissions by saying that the matter was a purely a legal argument, the facts have a significant part to play.

The Underlying Facts

14. In a case in which a strike-out is sought, a court must take the facts alleged in the originating application as being true, unless manifestly absurd. At paragraph 6.2 of her claim, the Appellant says that in July 2001 she entered into a consultancy agreement through the agency of a company, Sumukan Ltd (formally The Asset Management Shop Ltd). Under that contract, her services were provided to the Secretariat. The consultancy work she did ended in May 2002. Issues arose between Sumukan Ltd and the Secretariat. Those issues were referred to arbitration. As will have been noted, there is no immunity from arbitral proceedings in respect of contracts entered into with the Secretariat.
15. In the course of those proceedings, between 8 and 11 February 2005, it was alleged by counsel acting for the Secretariat that there had been an affair between the Appellant and the Secretariat's Project Manager/Deputy Director under the contract. This allegation was untrue; and would not have been made if the Appellant had been male. The allegation was essentially that the relationship had improperly blurred what should have been an arms length arrangement. Further, the Secretariat continued to refuse to accept that the Appellant's consultancy work had been completed to a proper standard. Though not an employee, the Appellant claimed to have rights under the contract worker provisions (as they might be termed) in respectively Section 9 of the Sex Discrimination Act 1975 and Section 7 of the Race Relations Act 1976. Though the discrimination occurred after the termination of any work under the contract, and was thus post-termination discrimination, a similar approach (she contended) should be taken as would be to a case of post employment discrimination.

The Procedural History of the Appeal

16. Ms Cook's decision states that the Claimant did not identify how it was that the provisions of the Commonwealth Act 1966 did not apply (though it goes on to show that the Appellant had in mind broad considerations of the type identified in paragraph 8 of the Tribunal decision, cited above). This was despite having the benefit of legal advice, not least during the lengthy arbitration throughout which Sumukan had been legally represented.
17. In amended grounds of appeal (9 March 2006) it was said by her Solicitors that the Claimant expressly stated (to Ms Cook) that she was not prepared to deal with the jurisdictional point raised by the respondent at the review hearing, since she was seeking an adjournment.
18. In re-amended grounds of appeal (5 May 2006) this was repeated, but elaborated on by saying that the Claimant would have contended that the Tribunal had jurisdiction because the Act of 1966 was contrary to Article 6(1) of the Convention, and the procedural bar imposed by that Article was neither in pursuit of a legitimate aim nor proportionate.
19. When the appeal first came before this Tribunal, HHJ Clark determined that it raised no point of law which was reasonably arguable, and that the Appeal Tribunal had no jurisdiction. This was on 27 February 2006 before the grounds were amended. On 10 April 2006, HHJ McMullen Q.C. determined that those amended grounds, too, gave rise to no arguable case.
20. It was not until 5 May, in the re-amended grounds, that an argument for avoiding the impact of the 1966 Act was first formulated.
21. Exercising the Appellant's right to pursue an application under Rule 3(10) of the Employment Appeal Tribunal Practice Rules, the matter came before the President on 4 July 2006. He thought the only possible argument was the one pursued before me: but that the Appellant needed to make it clear precisely what the grounds were and to reflect, in those grounds, a detailed supplemental skeleton argument prepared for the Rule 3(10) hearing by Mr Anthony Speight QC.
22. Further amendments were proposed in writing by the Appellant herself, and came before the Tribunal in September 2006, going outside the scope of that which Mr Justice Elias had permitted in July. They have not been pursued before me. No leave has been granted for them to be argued.
23. Despite the amendment, re-amendment and attempted re-re-amended notice of appeal, it had not been submitted until the argument was put in Mr Speight's skeleton argument for the hearing before me that a critical step in the Claimant's reasoning was that the Secretariat was a "public authority" within the meaning of the Convention. Although Mr Reade, Q.C. who appeared for the Secretariat was in a position to meet this argument, and was not prejudiced by the point being taken, he drew attention to the fact that it was an entirely new argument. He contended that there were factual issues as to whether the Secretariat was a "public authority" – although when pressed drew back from suggesting that a factual evidential enquiry was needed. He put it that the decision was rather one of discretion. He drew attention to Glennie v Independent Magazines (U.K) Ltd [1999] IRLR 719, CA, in which the Court of Appeal held that the Appeal Tribunal had erred in permitting the applicant in that case to raise a new point of law relating to the effective date of termination of her employment, in circumstances in which her effective date of termination had been determined as a preliminary jurisdictional issue on the basis on which the applicant, represented by Solicitors, had placed her application before the Employment Tribunal.

Public Authority

24. Mr Speight Q.C. claimed that it had been accepted by concession in the Sumukan case (reported as Sukuman Ltd v Commonwealth Secretariat) [2006] 2 LlR 53, before Mr Justice Colman that the Commonwealth Secretariat was a public authority for the purposes of the European Convention on Human Rights (see paragraph 23). As such, the decision of that authority to claim immunity was subject to control under the Human Rights Act.
25. Plainly, a concession made in other proceedings between different (though linked) parties cannot bind me on this appeal.
26. It seems to me that any argument that the Commonwealth Secretariat is a public authority within the meaning commonly given to that expression in European Law is fraught with difficulty. This arises because the basis for holding a public authority subject to the law of the European Union or European Convention is that it represents an arm of the State itself, which is, as a State, subject to the obligations imposed on the one hand by a Directive or Regulation, and on the other by the Convention. It is this character as an arm, or emanation, of the State that makes it unnecessary to ask whether obligations arising under European Union law have effect on the public body, and which govern the analysis of whether the (for example) deprivation of life or the imposition of inhuman or degrading treatment is directly to be attributed to the State or State agents, or whether the appropriate consideration should be whether the State affords a sufficiency of protection to the individual by exercising its legislative and administrative powers, an indirect route. Save in an attenuated sense, an international organisation cannot be said to be an arm of any one member or contracting State, though it may be regarded as an arm of several States acting jointly. The extent to which it has special powers, exercisable within the jurisdiction, arising out of its status (see for instance, the discussion of the characteristics of a public authority in Foster v British Gas PLC [1991] 2 A.C. 306, H.L.) must be questionable.
27. However, dubious though I am that the Commonwealth Secretariat is a public authority, nonetheless Mr Reade accepts for the purposes of the present judgment I should assume that it is one. He reserves the right to argue the contrary at a later stage, should that be necessary. Since I have not heard full argument upon it, therefore, I shall do as he asks, though think it right to record my reservations.
28. Since I was invited to deal with the case on this basis, no further facts fell to be found, and Mr. Reade did not suggest a need to do so would arise if he were to rely upon an argument he had reserved. I shall thus deal with the relevant authorities touching on the other three limbs of the Appellant's argument.

The Authorities

29. It may be relevant to note that norms of International Law are automatically recognised by the courts as part of the common law (Triquet v Bath (1764) 3Burr 478 per Lord Mansfield); Trendtex Trading v Bank of Nigeria [1977] QB 529, per Lord Denning MR at 554. It is such a norm that an international organisation enjoys some immunities from suit within the country where it is located.
30. Immunity from suit of an international organisation is not the exact equivalent of State immunity. The scope of the former was considered in Waite and Kennedy v Germany (1999) 30 EHRR 261, a decision of the European Court of Human Rights. The applicants contended that they had not had a fair hearing, as supposedly guaranteed by Article 6(1) of the Convention, because the European Space Agency had pleaded the immunity it enjoyed as an international organisation before the German Labour Courts.
31. In its judgment at paragraph 59, the court said:-

"The court recalls that the right of access to the courts secured by Article 6(1) of the Convention is not absolute, but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention's requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that very essence of the right is impaired. Furthermore a limitation will not be compatible with Article 6(1) if it does not pursue a legitimate aim, if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved…"

32. The court continued, to consider whether the grant of immunities to international organisations represented a breach of the principle as they had just expressed it. It concluded that a rule conferring immunity from suit upon an international organisation had a legitimate objective. It was an essential means of ensuring the proper functioning of such an organisation free from unilateral interference by individual governments (paragraph 63). Proportionality thus fell to be considered: and the court had to address the contested limitation placed on Article 6 in the light of the particular circumstances of the individual case before it. A material factor in this (see paragraph 68) is whether the applicants had available to them reasonable alternative means to protect their rights effectively under the Convention: on the facts of Waite itself, there was recourse to an Appeals Board set up by the European Space Agency which was independent of the agency.
33. In summary, the court concluded:

"(72)…the test of proportionality cannot be applied in such a way to compel an international organisation to submit itself to national litigation in relation to employment conditions prescribed under national labour law. To read Article 6(1) of the Convention and its guarantee of access to court as necessarily requiring the application of national legislation in such matters would, in the court's view, thwart the proper functioning of international organisations and run counter to the current trend towards extending and strengthening international cooperation."

34. Taking into account in particular the means of legal redress available to the applicants, the court held that the limitation on their access to the German courts, by reason of the claim for immunity from suit, was not disproportionate for the purposes of Article 6(1). The Convention had not thereby been violated.
35. In Beer and Regan v Germany (2001) 33 EHRR 3, the court again considered the position of the European Space Agency, and concluded to the like effect.
36. Though state immunity rests on somewhat different foundations, I was shown that the scope of State immunity was raised before the European Court in the case of Fogarty v United Kingdom [2001] ECHR 762. The applicant in that case had been employed at the United States Embassy in London. She was dismissed in 1995, following which she successfully pursued a claim for sex discrimination based upon harassment by a co-worker. She regained employment in the embassy, and from that position applied for two other posts. She was on each occasion unsuccessful. She claimed she was denied those posts because she had successfully previously complained against the embassy (i.e. it was a victimisation claim pursuant to Section 4 of the 1975 Sex Discrimination Act). At that stage, the United States Government first invoked a claim for State immunity. The applicant contended before the European Court of Human Rights that this violated her Article 6(1) rights, taken together with Article 14(non-discrimination). The court held (paragraph 34) that sovereign immunity was a concept of International Law, by virtue of which one State was not to be subject to the jurisdiction of another State. The grant of sovereign immunity to a State in civil proceedings pursued the legitimate aim of complying with international law to promote good relations between States through the respect of another State's sovereignty. Thus the ability to claim State immunity could not in principle be regarded as imposing a disproportionate restriction on a right of access to a court. Some restriction on access must be regarded as inherent.
37. At paragraph 37, the court noted that there appeared to be a trend in international and comparative law towards limiting State immunity in respect of employment related disputes. It commented:

"However, where the proceedings related to employment in a Foreign Mission or embassy, international practice is divided on the question whether State continues to apply and, if it does so apply, whether it covers disputes relating to the contracts of all staff or only more senior members of the mission. Certainly, it cannot be said that the United Kingdom is alone in holding that immunity attaches to suits by employees at diplomatic missions or that, in affording such immunity, the United Kingdom falls outside any currently accepted international standards."

38. Mr Speight Q.C. drew my attention to "The Law of State Immunity" by Hazel Fox Q.C., as part of an argument that sought to distinguish the facts of the present case from the Waite, Beer and Fogarty decisions, and thereby permit the possibility of a different answer. At page 473, Hazel Fox QC identified the rationale for the grant of immunity to an international organisation as the protection of its functioning and independence, uniformity of disputes settlement, equality of treatment by States, and to ensure respect for its status and internal law (citing Reinisch). She noted that a distinction between international organisations and States was that in the case of the latter there were alternative national jurisdictions to which claims against States were first to be referred, and that officials of an international organisation regardless of their nationality enjoyed full immunity both against the host State and the State of their nationality. Moreover, State and diplomatic immunity was ensured through the operation of the principle of reciprocity, whereas an international organisation had no such effective sanction (citing Bowett).
39. He argued that Fogarty exemplified a case in which a government had chosen not to claim immunity: it could not be said that immunity was essential to the functioning of the State. Proportionality in Waite and Beer depended upon the availability of an alternative remedy. The Commonwealth Secretariat had an Appeal Tribunal internal to it, as did the European Space Agency: but it had jurisdiction in respect of contractual disputes, and the Claimant was not in contract with the Secretariat. Sumukan was: but that did not mean that she had any right or remedy that could be pursued through the arbitral Appeal Tribunal route. It was thus open to a court to hold that the restriction upon her right of access was disproportionate to the legitimate aim identified in Waite, and Beer, carefully distinguished as an aim from that appropriate to States, and recognising that the exercise of applying the test of proportionality was different in the case of an international organisation from the case of a State.
40. As to this, Mr Reade pointed out that this argument depended entirely upon the choice which the Claimant had made as to the way in which she had engaged with the Commonwealth Secretariat at the outset. She could have chosen to contract directly. Instead, she did so through Sumukan. Her complaints of discrimination related entirely to the performance of the consultancy contract made through Sumukan (she complained that there had been post employment discrimination consisting of a refusal to accept that the consultancy had been completed to a satisfactory standard, in particular areas of consultancy personally performed by the Claimant; and her complaint of discrimination arose out of the conduct of the arbitration proceedings itself involving Sumukan, and were thus plainly related to those proceedings even if also related personally to the Claimant.)
41. Thus, just as in the Waite and Beer cases, there was an internal appeal system capable of affording the Claimant access to the substance of the matters in respect of which she complained.
42. Further, Section 41(1) of the Sex Discrimination Act 1975 provides:

"Anything done by a person in the course of his employment shall be treated for the purposes of this Act as done by his employer as well as him, whether or not it was done with the employer's knowledge or approval."

Section 42 provides:-

"(1) A person who knowingly aids another person to do an act made unlawful by this Act shall be treated for the purposes of this Act as himself doing an unlawful act of the like description

(2) for the purposes of Sub-Section (1) an employee or agent for whose act the employer or principal is liable under Section 41…shall be deemed to aid the doing of the act by the employer or principal."

43. Presumably in reliance upon these Sections, it has undoubtedly become common for claimants in discrimination claims to name as defendants those individuals whom they claim have transgressed against them. In the present case, therefore, as in others, it would have been open to the Claimant to proceed against an individual. Any wrong done to her was thus not without alternative remedy.
44. Mr Speight Q.C. pointed out in reply that this submission had force only if the individual concerned was neither an officer nor servant of the Commonwealth Secretariat, or, if she or he was, did not elect to claim the immunity from suit and legal process to which entitlement is conferred by paragraph 6 of Part 1 of the Schedule to the Act of 1966.

Discussion

45. Mr Reade took his stance upon the fact that the application had been made by the Claimant was one for postponement of the hearing before the Tribunal. There was no basis for suggesting that that decision had been exercised on a wrong basis. It was clear that the argument of the sort now advanced was first raised at this appeal. It was, for instance, submitted in neither the re-amended or the re-re-amended notices of appeal that the respondent was a public authority. The reasoning now was that there was no forum in which the Claimant could litigate her rights, such that Article 6 was not complied with, and (since this court could not grant a declaration of incompatibility) an interpretative approach which recognised that it was arguable that the Commonwealth Secretariat were bound not to exercise what otherwise would have been a discretion conferred by Statute to claim immunity should be adopted.
46. The Respondent's claim based on Glennie is not, in my view, a complete answer to this appeal, for two reasons: one of law, the other of fact. As a matter of law, Laws LJ recognised in his judgment in Glennie that although a new point ought only to be permitted to be raised in exceptional circumstances, if the new issue goes to the jurisdiction of the Employment Tribunal below, that may be an exceptional circumstance, but only if the issue raised is a discrete one of pure or hard-edged law requiring no or no further factual enquiry. Here, Mr Reade frankly admitted that he was in a position to meet the argument. This seems to me to be one of the exceptional cases, in which a jurisdictional issue has been raised below which turns upon the applicability of a statute, and the argument is one based upon general considerations of law requiring no immediate factual enquiry.
47. Secondly, as a matter of fact, although the precise formulation of the argument (involving identifying the Commonwealth Secretariat as a public authority) was not in those terms put to the Chair, and, although the argument was addressed in broad generalities to her, it was contended that the impact of rights derived from the European Convention would be relied upon. The argument before me is consistent with that. What Mr Reade seeks to characterise as a departure might, with greater force, be characterised as fine-tuning. In short, upon both grounds (either of which would suffice) I do not think that his threshold challenge based upon Glennie can, or should, succeed.
48. That the Commonwealth Secretariat is a public authority I have to assume for the purposes of this hearing, whatever may be held to be the position hereafter.
49. , Critical, therefore, to my conclusion has to be whether the words of the statute (which are clear) are open to the interpretative approach to be taken to those cases in which the apparent effect of a statute at first blush seems to diminish a right, the wholesale enjoyment of which is guaranteed by the Convention. In my view, this is not such a case. I do not see how the statute can be interpreted so as to deny an effective claim for immunity. Moreover, the route chosen now by the Appellant to argue that her case should be heard is a tenuous one, which depends upon the exercise of discretion or judgment at a number of steps. First, I have to judge that it would be inappropriate for the Commonwealth Secretariat as a public body to rely upon its protection otherwise conferred by statute. Secondly, I have to judge that to bar her claim to promote the object sought by conferring immunity upon international organisations, for the purposes identified in Waite, would be disproportionate – which involves looking not at the form of the proceedings, but upon their substance. I have then to conclude that the Tribunals below did not exercise their powers appropriately, for they did not have regard to the rights guaranteed by the Convention (even though those rights were raised in broad terms before them). It is only then that I have the right to exercise the tribunal's jurisdiction for myself. Next, I have to exercise a discretion that, if a strike out is disproportionate, I should hold that the Commonwealth Secretariat should not be entitled to a stay of the proceedings but, instead, that those proceedings should be heard – thereby exercising my discretion in such a way as to contradict the plain intention of the statute. The point is well taken by Mr Reade that the current way of addressing the Appellant's case is an indirect attack upon a statute which the Court has no power, even if it were so inclined, to declare incompatible with the Convention.
50. I regard the claim that I should exercise my judgment and my discretion in these respects is tenuous, and ultimately untenable.
51. First, it cannot be said that a claim for immunity is generally a disproportionate breach of Article 6(1). The rulings in Waite, and Beer, make this clear. Such is the importance of the object to be achieved by permitting international organisations to claim immunity that this must be the case.
52. As to whether the claim is disproportionate, there is, here, an internal Appeal Tribunal capable of hearing contract appeals upon reference to arbitration. The fact that the Claimant has no contract of employment with the Respondent is relied upon by Mr Speight Q.C. as a reason for saying that the statute here produces a disproportionate result, for the Claimant has no direct rights to a tribunal – but that is to rely upon the tenuous nature of the link between the Claimant and the Respondent as a reason for giving her greater rights than would be afforded to someone with a stronger (i.e. contractual) link. In so far as proportionality falls to be judged by the circumstances of a particular case, the Claimant deliberately used the vehicle of Sumukan with which to contract with the Commonwealth Secretariat. That she did so to secure her own advantage in her relationship with the Secretariat I have no doubt. This should not put her in a stronger position than someone more deserving in the balance to be struck when deciding as between proportionate and disproportionate.
53. Moreover, her claim is specifically based upon the suggestion that an accusation that she had an affair, made on behalf of the Secretariat some considerable time after the contract had terminated, falls within Part II of the Sex Discrimination Act 1975: "Discrimination in the Employment Field". The Appellant thus has the hurdle potentially of showing that discrimination under section 9 of the 1975 Act (Discrimination against Contract Workers) may apply after the termination of the contract, just as it may do in the case of an employee. She will also have to persuade a court or tribunal that the allegation that there was an over-familiar relationship between herself and the Project Manager, when levelled at Sumukan, a company and thus gender-neutral, was a matter which, taking the facts at their highest would properly be characterised as amounting to an act of discrimination at all. Much must depend upon the way in which a tribunal regards the substance of that which is being complained of: is it to be regarded as having a less than an arms length relationship (sex neutral) or an heterosexual affair with a male Project Manager (which is thus gender specific)? The alleged discrimination took place at a time when she was represented by professional lawyers, before a quasi-judicial body. Though it would not have been cast in the formal nature of a discrimination claim before an employment tribunal, she had at least the opportunity of drawing the sex related allegation, and its detriment to her, immediately to the attention of the arbitral panel, and thereby that reasonable opportunity of ventilating her complaint and having it determined which Article 6 seeks to preserve. Had she exercised that opportunity, I would have expected the panel to have been in a position to remedy her complaint if the conduct of which she complained seemed unfair, in that particular context at that particular time. If it did not seem unfair, supporting her right now to complain to an employment tribunal about that act of discrimination may involve interfering with the Article 6 rights of the Respondent, as another party to the arbitration, properly to put its case: for if the Claimant is right in her claim, then there will be serious financial and procedural consequences attending any party to an arbitration, or other court proceedings, who makes such an allegation unless it can be shown to be demonstrably true – and even then, the discriminatory aspect of it remains since what is alleged is direct discrimination upon the ground of her sex, and it is (or is almost) axiomatic that direct sex discrimination may not be justified (only comments by Lord Browne-Wilkinson in Strathclyde Regional Council v Wallace & Others [1998] ICR 205 at 212f to 213b, and 214 d to e may suggest a limited exception, not applicable here).
54. In short, in assessing the disproportionate effect of a restriction on taking proceedings in an individual case, regard must be had to the extent of the disadvantage suffered in practical terms by the party restricted. In my view, permitting the Commonwealth Secretariat to claim immunity if it should choose to do so is wholly proportionate to the disadvantage which the exercise of those rights had upon the Claimant in the present case. Even if I were wrong on that, I accept Mr Reade's argument that the Appellant is claiming that the choice made by the Commonwealth Secretariat should be regarded as illegal. The strike-out of the claim, as a consequence of the Tribunal ruling, is a consequence of the fact that the Employment Tribunal had no jurisdiction by reason of the operation of the Act. If the real villain of the piece is the 1966 Act itself, as the Appellant's arguments suggest she sees it, I would not be inclined to exercise my discretion to relieve her of the strike-out. Rather, the remedy has to be a direct challenge to the Act itself. Such a challenge is not appropriate in the present proceedings.
55. Mr. Speight's argument is addressed not to an error of law by the Tribunal, but to an error of public law by the Secretariat in invoking the immunity such that the tribunal had no choice but to respect it. This is a poor basis on which to impugn a decision of the Tribunal, which is alone what falls for consideration in this Appeal Tribunal.

Conclusion

56. Although as a consequence of the length of the arguments addressed to me my reasoning has necessarily been fuller than that of the two Tribunals who have thus far considered the point, it is to the same effect. The appeal must fail: the Tribunal had no jurisdiction to entertain the case beyond admitting and accepting the plea of immunity. The inevitable consequence was that the Appellant's case was struck out. She must be left to her remedies in the arbitral proceedings: having contracted with the Commonwealth Secretariat through the agency of Sumukan, in effect, it does not seem to me to be at all inappropriate that any action she brings in respect of her present complaint, in so far as she can, is similarly addressed through that agency. The admittedly clear words of the 1966 Act must be respected as they stand.