United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MARTYN WEST (Solicitor) Messrs Carrington & Associates 8-12 New Bridge Street LONDON EC4V 6AL
For the Respondent	MS EMMA JAYNE SOLE (of Counsel) Instructed by: Messrs Norton Rose LLP Solicitors 3 More London Riverside LONDON SE1 2AQ

SUMMARY

JURISDICTIONAL POINTS: Excluded employments

The issue in this case is whether the Employment Tribunal was entitled to refuse to review three earlier decisions in which it had concluded that the respondent Authority could not claim state immunity because the claimant fell into one of the exceptions in section 4 of the State Immunity Act 1978. It then subsequently awarded the claimant compensation for unfair dismissal and other breaches of statutory employment rights. The EAT, whilst recognising that considerable leeway will be given to foreign states who seek to raise the issue of immunity late in the day, nonetheless determined that in the particular circumstances of this case the Tribunal was entitled to refuse to review the decisions.

In any event, it appeared highly likely that the state had waived any immunity which it might otherwise have been able to claim.


 


THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)

1. This appeal raises an issue concerning the application of the doctrine of state immunity. The claimant was seeking to enforce certain statutory employment rights before the Employment Tribunal, and the issue arose whether state immunity could be claimed. Before considering the facts in this case, we first set out the relevant law.

The law.

2. Section 1 of the State Immunity Act sets out the principle of state immunity in the following terms:

1. - (1) A state is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this part of the 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.

3. Subsection (2) shows that this issue of jurisdiction has to be taken by the court of its own motion even if the State itself does not raise it in the proceedings.
4. There are then a whole series of exceptions to this principle. Section 2 provides for an exception where the State has waived the immunity. This occurs where "it has submitted to the jurisdiction of the courts of the United Kingdom" (section 2(1)). This includes a case where it has taken any step in the proceedings, other than to claim immunity itself (section 2(3)(b) read with 4(3)(a)).
5. However, subsection (5) provides that there will be circumstances where it will not be deemed to have waived immunity by taking such steps if it did so in circumstances where it was reasonably ignorant of the facts entitling it to immunity, and immunity is claimed as soon as reasonably practicable thereafter. Finally, subsection (7) provides that any waiver must be exercised by the Head of the Diplomatic Mission or someone exercising his powers:

(7) The head of a State's diplomatic mission in the United Kingdom, or the person for the time being performing his functions, shall be deemed to have authority to submit on behalf of the State in respect of any proceedings; and any person who has entered into a contract on behalf of and with the authority of a State shall be deemed to have authority to submit on its behalf in respect of proceedings arising out of the contract."

6. Section 3 removes the immunity from certain commercial transactions entered into by the State. However, this provision does not apply to contracts of employment. They are separately dealt with by section 4. This, so far as is material, is as follows 4(1) to 4(4):

"(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 subsections (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, subsection (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.

(4) Subsection (2)(c) above does not exclude the application of this section where the law of the United Kingdom requires the proceedings to be brought before a court of the United Kingdom."

7. Subsection 4(6) provides that the term "proceedings relating to a contract of employment" includes claims relating to statutory duties owed by the state as employer. In principle, therefore, that provision is potentially applicable to the claims made in this case.

The background.

8. The claimant (as we shall continue to call her, although she was the respondent before us) was employed by the Mauritius Tourism Promotion Authority ("the Authority"). Her employment was terminated with effect from the end of April 2006. She alleged that she had been unfairly dismissed, that she had been given no written statement of the reasons for the dismissal, nor any written statement of the terms and conditions of her employment.
9. On 24 August 2006 a letter was written to the Tribunal on the Authority's notepaper, and signed by the First Secretary, Mr Ghoorah, who is responsible for tourism, resisting the claim on its merits. It stated that the claimant was dismissed because she had reached the age of 60 and under the government policy of Mauritius her contract had to be terminated. That letter was not treated as a response because it was not in the prescribed form.
10. Once the time for lodging a response had elapsed, the case was considered by an employment judge who, of his own motion, listed the matter for a pre-hearing review on the grounds that the Tribunal might not have jurisdiction to hear the case because of state immunity. Accordingly, he did precisely what section 1(2) envisages. He made an order on 13 October which identified as the relevant issue whether the Authority is a state or an emanation of the state for the purposes of the State Immunity Act 1978.
11. In fact, by the time he had made that order the Tribunal had received a proper response from the Authority. This again dealt with the substance of the matter - indeed, it appended the earlier letter as the grounds of resistance - and did not raise the question of state immunity at all.
12. Nonetheless, the Tribunal considered that issue. A preliminary hearing dealing with the issue took place on 22 November 2006. The respondent was neither present at, nor submitted any documents for, the hearing. The employment judge heard evidence from the claimant and decided that there was no state immunity. Apparently oral reasons were given for that decision at the time but no transcript was ever produced and the tape of the reasons is no longer in existence. However, a summary of the reason was given in a subsequent review decision (which we refer to further below) as follows:

"…...the original judgment was to some extent based on the fact that the Respondent was a commercial organisation and therefore fell within the provisions of section 4 of the State Immunity Act 1978, the exclusions to that section contained in section 4(2) not applying, so far as subsection 2(a) was concerned because of the provisions of subsection(3)."

In short, the claimant was a national of Mauritius but the exclusion that would otherwise have taken effect by virtue of section 4(2)(a) was removed by subsection (3).

13. On 13 December 2006 the Mauritius High Commission wrote to the Tribunal stating that the Authority was part of the High Commission and therefore entitled to immunity. The letter stated that it was hoped that the information was relevant and would satisfy the Tribunal. It was signed by the Head of the Commission.
14. The Tribunal resolved to treat this letter as an application for review. They notified the Authority of that by letter dated 13 December 2006. The last sentence of that letter said this:

"However, if you do not arrange representation on a "without prejudice basis" as to immunity the judgment will be affirmed."

The Authority was therefore told in wholly unambiguous terms that the letter was not sufficient.

15. The review hearing was fixed for 8 February 2007. The respondent was notified of this on 11 January 2007, and the full merits hearing was vacated pending the review. The respondent again did not attend. Tribunal staff made two attempts to contact the High Commission by telephone on the day of the hearing. Individuals at the Commission were spoken to but no representative was sent to the Tribunal.
16. The Tribunal were satisfied that every opportunity had been given for the respondent to attend, and in the circumstances the application for review was dismissed. Again reasons were given orally. This court obtained those reasons following the hearing before us. Essentially they were that since there was no attendance or representation, there was no basis for questioning the original ruling that the immunity was not applicable. The Authority was maintained for commercial purposes within the meaning of section 4(3).
17. Neither of these decisions was appealed. The full merits hearing was subsequently fixed for 14 June 2007. Initially it was fixed for a date in April but that was postponed because there was not a Tribunal available. The June hearing was before a different employment judge than had heard the two earlier cases. Again there was no attendance by the Authority and no communication of any kind relating to the issues. The Tribunal entered judgment for the claimant in relation to all of her claims on the basis of the evidence they heard. Compensation in excess of £25,000 was ordered.
18. On 28 June 2007, fourteen days after the judgment had been delivered, the respondent sought again to raise the issue of state immunity. The Authority stated that they had not received notice of the hearing. They indicated that they wished to take the issue of state immunity and might also want to raise some substantive issues However, the Tribunal was asked to deal with the question of immunity first.
19. This application was treated as an application for a review on the grounds that the Authority had not received notice of the hearing. This led to a further hearing on 11 January 2008.
20. The Tribunal noted in its decision that the solicitors raising the application on behalf of the Authority had apparently not appreciated that there had already been two hearings on the issue of state immunity. Accordingly, the Tribunal treated the application as seeking a review of those earlier decisions also. This meant that it was a second review of the original decision that the Tribunal did have jurisdiction to hear the claim. At that stage the Tribunal indicated that it might in due course undertake a review of the 14 June decision on the merits but would consider the issue of state immunity first lest the Authority, by challenging the merits of the decision, be treated as having waived jurisdiction by taking a step in the proceedings.
21. The Tribunal first considered whether the review should be permitted out of time. They held that it should not. The review application was well out of time. It could not be accepted, as the authority contended, that they thought that it was enough simply to assert state immunity. This was not in fact what they had done. On the contrary, they initially chose to fight the case on the merits. In any event, whatever misunderstanding they may have been under at the end of 2006, the position was made crystal clear to them that they had to adduce evidence at the review hearing on 8 February 2007 or the issue would be determined against them. The Authority then chose to do nothing for over four months, and then only after an order had been made against them. In the circumstances, it was not just and equitable to extend time. The Authority had sat back and done nothing for too long.
22. Furthermore, the application failed on the facts, for much the same reasons. The Tribunal noted that the respondent had initially sought to contest the merits of the case without adverting to state immunity. Once the jurisdictional issue had been identified by the employment judge, the respondent chose not to submit evidence in relation to the matter or to attend the preliminary hearing fixed to determine whether state immunity applied or not. Every opportunity was given to the Authority to be represented, including making the two telephone calls on the day of the first review hearing.
23. In the order made following the 11 January hearing, the Tribunal adjourned the review application to enable the Authority to consider whether it was willing to submit to the jurisdiction by contesting the merits. The Authority subsequently indicated that it would seek a

Review:

"notwithstanding the effects upon its previous claim to state immunity."

24. This resulted in a further review hearing on 6 February 2008 at which this application was considered. Again the Tribunal rejected the application.
25. Although the finding of the Tribunal is somewhat equivocal on this issue, it seems to me that they did not accept a submission from the Authority that they had never received notice of the hearing for the 14 June; there was no intrinsic problem about an incorrect address or effective delivery, and the Tribunal did not find the evidence of Mr Ghoorah concerning what documents had been received satisfactory. In any case they were satisfied on the evidence before them that the Authority would not at that stage have attended for the purpose of arguing the merits of the case. They had not complied with any earlier case management orders, and the evidence of Mr Ghoorah suggested that they would simply have adopted a stance of non-involvement and the Tribunal considered that they would only have been present to obtain judgment and possibly, although reluctantly, to respond to any questions from the Tribunal.

The appeal.

26. The grounds of appeal challenge the decision of 14 June and the second and third refusals to permit a review on the 11 January 2008 and the 6 February 2008 respectively. (The latter was an application for review on the merits). The contention is that there was an obligation on the Tribunal in this case to permit the Authority to argue that the issue of state immunity once it had been unequivocally raised by their lawyers.
27. It is submitted that whatever the position adopted by the respondent Authority at the earlier hearings, once they were properly and professionally represented at the review application on 11 January, it was the duty of the Tribunal to investigate the immunity claim notwithstanding that there had by then been a determination of the claims on the merits. Reliance is placed on a number of authorities which I consider below. It is contended that the claimant was involved in non-commercial activities and was engaged by the High Commission of Mauritius and as such fell within the terms of section 4(3). That was an issue which had been determined against the Authority without any proper analysis of all the relevant evidence.
28. As to the finding on the merits, there were matters which went to the substance of the claim and which were amplified in a skeleton argument. The Authority questioned whether the claims were in time and whether the claimant was an employee. This demonstrated that there were real issues to be determined, which the Tribunal had not considered.
29. The claimant submitted that the Tribunal were entitled to conclude that the respondent had been afforded every opportunity to submit evidence and advance argument on the question of jurisdiction, but they had chosen not to do so. Equally, the Authority did not avail themselves of the opportunity to advance argument on the issue on the 14 June. The Tribunal was plainly entitled to conclude that thereafter there was no justification in allowing them a further bite of the cherry. It would not be just and equitable to allow an extension of time to allow any further review. The decision of the Tribunal was sustainable in law and should not be overturned.

Conclusions.

30. This appeal has centred around the issue whether the Tribunal's conclusion that the immunity was disapplied by section 4 of the Act can be reopened. We observe that we think that this is likely to be a Pyrrhic victory for the Authority, even if they were to succeed. The reason is that we find it difficult to see how the Authority could escape the conclusion that they have in any event by their actions chosen to waive immunity by taking steps in the substantive proceedings. This included its decision to seek a review of the 14 June hearing on its merit and indeed to appeal that unsuccessful application to this court. However, that issue was not directly argued before us, and we heard no argument on it. Accordingly, it would be wrong for us to determine the issue of jurisdiction on that simple ground, however strong it may appear to be.
31. It follows that we must consider the question whether the Tribunal ought to have reopened its decision that it had jurisdiction because the Authority was not an emanation of the State once the Authority had indicated that it wished to pursue the point.
32. There can be no doubt that, as the claimant forcefully argues, if this case did not raise the issue of state immunity, there would be no basis at all for interfering with any of the decisions of the Employment Tribunal. It is only in exceptional circumstances that discretions of this nature are upset by this court, and in this case there was no misdirection by the Tribunal and plenty of evidence to support their conclusion that a second review should not be permitted.
33. Mr West, who appeared for the Authority, realistically did not seek to argue otherwise. It seems to me that this defeats the appeal with respect to the refusal on 6 February 2008 to consider a review of the merits of the case. That does not raise any special issues of jurisdiction because the premise of that application was that the Tribunal was properly seized of jurisdiction. However, the issue with respect to the decision of 11 January is undoubtedly rendered more complex by the fact that state immunity is in issue.
34. It is well established that in certain circumstances this obliges a court or tribunal to consider the issue of state immunity even although the point has not been specifically raised, or in some cases has been raised later than it ought to have been, perhaps even out of time. A potentially material feature in this case is that at no time has the Tribunal considered evidence or submissions from the respondent Authority itself. The question is whether it was obliged to do so once it became apparent that the Authority wished to advance their case and were ready to do so.
35. There are three authorities which in our view are highly pertinent to the issues in this case. In United Arab Emirates v Abdelgahfar [1995] ICR 65 the Industrial Tribunal was faced with a claim of unfair dismissal by certain employees against their employers, United Arab Emirates. The respondent raised the question of state immunity. Because of an administrative error they were not notified of the date when a preliminary hearing on that issue was to take place. The Tribunal found against them on the grounds that section 4(1) of the State Immunity Act 1978 applied.
36. The employers instructed solicitors who lodged an appeal some 52 days after the expiry of the 42 day time limit. The registrar refused to extend time but the EAT held that she had been wrong not to do so.
37. Mr Justice Mummery, giving the judgment of the EAT, set out what have become the established principles for determining whether or not a claim before the EAT should be allowed out of time. He emphasised that the grant or refusal or extension of time was a matter of judicial discretion; that it is an indulgence requested from the court and not a right; and that in the normal case it will be necessary for a claimant to establish a full, honest and acceptable explanation of the reason for delay before he can anticipate any discretion being exercised in his favour.
38. In this case the explanation for the delay was that the solicitors were not instructed until late, for no obvious reason. The EAT held that in normal circumstances that would not constitute a satisfactory explanation for the delay. The failure to instruct solicitors earlier involved incompetence which would not normally justify an extension of time. However, Mummery J observed that the nature of the defence was such as to make this an exceptional case which required time to be extended. He said this, after concluding that normally this appeal should be dismissed:

"…There is, however, an exceptional feature of this case which has persuaded me that time should be extended. That feature has been identified by Mr Smouha as state immunity. State immunity is a doctrine of public international law now incorporated in the domestic law of the United Kingdom by the State Immunity Act 1978. The doctrine recognises that there may be real difficulties and serious objections in tribunals in the United Kingdom conducting investigations into the internal affairs of the embassy of a foreign state. For present purposes the important point on state immunity is that it is provided by section 1(2) of the State Immunity Act 1978 that the court itself has a positive duty to give effect to the immunity conferred by the Act, even in cases where the state does not appear in the proceedings in question. Section 1(2) is in these terms:

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

The decision of this appeal tribunal in Sengupta v Republic of India [1983] ICR 221 illustrates how seriously the court regards this obligation. In that case the foreign state did not appear to take the point on jurisdiction. The court asked for the appointment of an amicus to assist it. If the court has a duty under statute to give effect to the immunity conferred, even though the state does not appear to claim it, that duty may be all the greater in a case where the foreign state has, as here, expressly taken the point of immunity.

The overriding duty of the court, of its own motion, is to satisfy itself that effect has been given to the immunity conferred by the State Immunity Act 1978. That duty binds all tribunals and courts, not just the court or tribunal which heard the original proceedings. If the tribunal in the original proceedings has not given effect to the immunity conferred by the Act, then it must be the duty of the appeal tribunal to give effect to it by correcting the error. The alleged error of the tribunal cannot be corrected in this case unless an extension of time to appeal is granted to the employers. The employers have shown that there is a reasonably arguable case that the industrial tribunal failed to apply the law of state immunity correctly. That makes this an exceptional case for an extension of time."

39. This decision makes it plain that even if the point has not been taken before the Employment Tribunal, it is necessary for the EAT to raise the issue of its own motion. It is important to note, however, that in this case the respondent had always wanted to raise the state immunity point but had not had a proper opportunity to do so.
40. The second case is another decision of the EAT (again Mummery J presiding) in Egypt v Gammal-Eldin [1996] ICR 13. This concerned a question whether certain drivers at the medical office of the London office of a foreign state, of which they were both nationals, could claim unfair dismissal. The medical council at the Embassy was informed that there would be a hearing relating to jurisdiction. No appearance was entered and the state was not represented at the hearing.
41. The Tribunal concluded that they did have jurisdiction, both because the activities under consideration were activities of a commercial nature within the meaning of section 4 of the 1978 Act; and also because there had been a waiver as a result of a letter sent to the Tribunal by the medical counsellor.
42. Again, the EAT held that if the industrial tribunal had failed to give effect to an immunity enjoyed by a foreign state, it was the duty of the Appeal Tribunal to correct that error. The EAT went on to find that there had not been an effective waiver because the medical counsellor did not occupy the position of the Head of the diplomatic mission and therefore had no authority to waive the lack of jurisdiction. It further held that the employees were members of the Mission and were not employed for commercial purposes.
43. Again, the argument addressed by the claimant to the EAT was that the state had had every opportunity to submit evidence and advance its submissions at the preliminary hearing. It chose not to do so and ought not now be allowed to re-open that issue. It was an impermissibly late attempt to introduce evidence which was available at the time of the hearing and was an attempt to re-open the findings of fact made by the Tribunal on the evidence adduced before them. The fact that the issue raised went to the jurisdiction of the Tribunal was immaterial. The Tribunal had to make a determination as to whether it had jurisdiction and it did so on the material before it.
44. The EAT noted that the evidence of the medical councillor was that he had understood that it was unnecessary for anyone to attend the industrial tribunal. Indeed, he was under the false impression that it would not be correct to attend because that might be seen as submitting to jurisdiction. Mummery J repeated the observation he made in the Abdelghafar case, to the effect that the court had to give immunity conferred by section 1 of the 1978 Act even though the state did not appear in the proceedings and he then said this, at page 20(b):

"If the industrial tribunal fails to give effect to the immunity in fact enjoyed by the Arab republic of Egypt as a result of not having all the relevant evidence it is in our view the duty of the appeal tribunal to correct this error and give effect to this immunity, even if that means departing from rules which normally applies to the admission of new evidence on appeal."

It is to be noted that in this case the respondent had been given an opportunity to make representations but had not taken it up. However, that was apparently because of a mistaken understanding of the steps that should be taken.

45. The third decision is that of the Court of Appeal in Republic of Yemen v Aziz [2005] ICR 1391 2005 EWCA Civ 745. In this case the Tribunal found in the context of an unfair dismissal case that the employers, the Republic of Yemen, had taken steps in proceedings by entering a notice of appearance dealing with the merits of the claim. The employers appealed on the grounds that the notice had not been approved by the head of the Mission, namely the ambassador in this case. Accordingly there had been no valid waiver.
46. The EAT heard evidence from the attaché at the Embassy, and from the ambassador, and concluded on the facts that there had not been a waiver. In the Court of Appeal, Pill LJ, with whose judgment Sedley and Gage LJJ agreed, gave a careful analysis of the policy lying behind the provisions of the 1978 Act. He observed that once the issue of state immunity arises then a tribunal is under an obligation to enquire into the circumstances. Pill LJ put it this way, after referring to the passage of Mummery J's judgment reproduced at para 38 above (paras 59-60):

"I do not read Mummery J's statement in Arab Republic of Egypt v Gamal-Eldin [1996] ICR 13, 20 as discharging the higher court from all obligation to make inquiry into the facts, including whether there has been a submission to jurisdiction. Mummery J referred to immunity "in fact enjoyed" by the state and to "all the relevant evidence". On the material before the appeal tribunal there was an issue as to whether the immunity was "in fact enjoyed" or had been waived and as to whether "all the relevant evidence" had been provided. There was a duty to inquire. That possible issue does not arise in the present case.

I would add that the duty of the courts under the 1978 Act to inquire is not confined to whether, under section 2, the state has submitted to the jurisdiction of the courts. Under section 1(2) effect must be given to the immunity conferred by section 1(1) even though the state does not appear in the proceedings. It follows that where a party to proceedings may be a state, within the meaning of the statute, inquiry is necessary into whether the entity party to the proceedings, though not present, has that status."

47. The Court of Appeal held that the EAT were right to have concluded that the issue of state immunity had to be reconsidered, but wrong to seek to determine the matter themselves. They should have remitted the case to the Employment Tribunal to decide on the facts.
48. The obligation to inquire into the issue of state immunity as a preliminary matter was also emphasised by the Court of Appeal in J H Rayner v Department of Trade [1989] Ch 72 per Kerr LJ at 194G and per Ralph Gibson LJ at 252E-F. Ralph Gibson LJ observed that where the issue turned on disputes of fact, the court would normally provide for disclosure and cross examination in the normal way. Whilst the sovereign state could not be placed under any sanction for non-disclosure, the court might have due regard to any failure to produce relevant documents.
49. Mr West submits that these cases show that considerable latitude is given to foreign states to ensure that they are not subject to the jurisdiction of the courts unless they have had a full opportunity to establish the facts in support of their state immunity claim.
50. There is no doubt that there is a considerable leeway which is given. A court is under a duty, when the issue of state immunity arises, to consider the position carefully and make appropriate inquiries to satisfy itself that the court can properly exercise jurisdiction. It must allow the state to appear and submit evidence and argument with respect to any disputed issues of fact.
51. However, in this case the court did raise the matter of its own motion, and even after the Authority had purported to put in a response on the merits. It also notified the Authority of its initial decision and gave them every opportunity to counter the evidence which had been advanced on behalf of the claimant.
52. It seems to us that this was the equivalent in the Tribunal context to the kind of approach envisaged by the Court of Appeal in the Rayner case. The Authority chose not to take up that opportunity at that time. Not only that but they continued to do nothing in response until some five months after the review application had failed, and after a substantive hearing had been determined against them.
53. In our judgment, there must come a point when the court is taken to have done enough. We think that the Tribunal was entitled to conclude that this was the position in this case. The Authority had been informed unambiguously that it needed to adduce evidence and it chose to do nothing at all. It was not the case that it was under some misapprehension as to what steps it could properly take consistent with its raising the issue of state immunity, as in the Gammal-Eldin case. In any event, as the Tribunal concluded that even if there was initially some misunderstanding, that could not have continued in the light of the unambiguous letter sent by the Tribunal in December 2006 explaining to the Authority precisely what it had to do if it wished to challenge the Tribunal's jurisdiction.
54. We are reinforced in this view by the fact that even under the 1978 Act itself it is envisaged that there may be cases where a state can in principle be subject to a default judgment (following compliance with various procedural requirements): see section 12. This indicates that a state cannot simply choose to sit idly by and wait until the moment of its choosing to raise the state immunity issue.

Disposal.

55. It follows that, in our view, this appeal fails. The Tribunal was entitled to refuse the application to review the decisions relating to state immunity. It was a lawful exercise of discretion which made proper allowance for the much more generous treatment afforded to foreign states when procedural discretions are exercised touching upon the right of a state to claim state immunity.