Harrington v United States of America
| Jurisdiction | UK Non-devolved |
| Judge | Lancaster |
| Judgment Date | 10 March 2015 |
| Date | 10 March 2015 |
| Court | Employment Tribunal |
England, Employment Tribunal.
(Lancaster, Judge)
State immunity — Jurisdictional immunity — Employment — Foreign military base — United Kingdom national employed as civilian computer operator on United States military base in United Kingdom — State Immunity Act 1978 — Whether Section 16(2) applicable — Whether doctrine of restrictive immunity applicable under common law — Whether act de jure imperii or de jure gestionis — Whether contract kind that private individual could enter into — Whether performance of contract involving both parties in public functions of foreign State — Nature of breach of contract or other act of foreign State giving rise to proceedings — Whether investigation of claim involving investigation into public or sovereign acts of foreign State — Whether respondent entitled to immunity — The law of England
Summary:2The facts:—The claimant, Mr Harrington, a United Kingdom national, was employed as a computer operator by the respondent, the United States,3 in an Army and Air Force Exchange Services (“AAFES”) retail facility at a United States Air Force base in the United Kingdom. He brought a claim against his former employer for direct and indirect discrimination on grounds of nationality. He maintained that, as a member of the local labour force employed under United Kingdom law, he had been subjected to less favourable treatment than the civilian component.4 The respondent asserted that it enjoyed State immunity and that the Tribunal therefore lacked jurisdiction over the claim.
Held:—The claim was dismissed. The Tribunal lacked jurisdiction.
(1) Section 16(2) of the State Immunity Act 19785 operated in this case so as to disapply Part 1 of that Act. Even if Part 1 had applied, Section 4(1) would have precluded a State immunity plea given that the proceedings related to a contract of employment (paras. 5–10).
(2) The test at common law was whether the respondent was immune under the restrictive theory of State immunity. This depended on whether the respondent was acting in the exercise of its sovereign jurisdiction (de jure imperii) and not as a private act (de jure gestionis). The nature of the act, in its context, was decisive, although its purpose and the subject matter of a contract of employment might inform the decision as to nature. Reference also had to be made to the nature of the breach of the contract (paras. 11–15).
(3) As a contract of employment, the contract was of a kind that a private individual could enter into; such contracts were usually within the private and commercial sphere (para. 33).
(4) The performance of the contract involved participation of both parties in the public functions of the foreign State. It was not purely collateral to such functions.
(a) The provision and maintenance by the United States of an AAFES store at the base was an act de jure imperii. Given that operating a military base was an imperial act but operating a retail outlet was not, the United States' purpose in operating the shop was relevant. This was enshrined in United States law and specifically linked to maintaining military readiness, which lay within the sovereign activity of a State even in peacetime. While not in a conflict zone, the base was of strategic importance. Although not a central military activity, the outlet was part of the welfare provision, together with other ancillary services, and not purely collateral to the function of the base (paras. 34–7).
(b) The employment of the claimant within AAFES involved the participation of both parties to the contract in that public function of the State. The claimant's role was not one which purely concerned the physical environment of the AAFES store, such as a cleaner, but was in an intermediate category, neither ancillary nor integral. The claimant's engagement in the public function of AAFES was more than purely collateral. Having worked for AAFES for a considerable time, he had some supervisory responsibilities, which were of central importance. That he was part of the United States worldwide defence structure was reinforced in the Employee Handbook. The claimant also aligned himself with the State's public function (paras. 37–42).
(5) The act giving rise to the proceedings, the variation of the contract, was a private act of State, in the same way that entering into the contract with the claimant was. Although determining the labour law rights of a State's nationals was a sovereign act of legislature, agreement of individual terms was not a sovereign act even where the contracting employer was the State (paras. 43–5).
(6) The investigation of the claim by the Tribunal would not have involved an investigation into the public or sovereign acts of the foreign State. The claimant's contract was intended to conform with United Kingdom law, including prohibitions of discrimination on grounds of nationality (paras. 46–7).
(7) The respondent was entitled to State immunity. Although the decision was at the very margins of what could be considered an act jure imperii, the claimant was engaged in the public functions of the United States military through the United Kingdom branch of the worldwide provision of commissary stores to service personnel. While sovereign act boundaries were changing, particularly in the context of employment contracts, there was no authority to indicate that restrictive immunity was applicable to the operation of military bases overseas (para. 48).
The following is the text of the judgment of the Tribunal:
The Tribunal has no jurisdiction over this claim. It is dismissed.
1. The Claimant, Mr Thomas Harrington, commenced proceedings on 24 December 2013, against his former employer, Army and Air Force Exchange Services (“AAFES”). AAFES is a non-appropriated fund instrumentality (“NAFI”) of the Army and Air Force under the jurisdiction of the respective Chiefs of Staff of those services and is therefore an integral part of the US armed forces. Although it is AAFES which is named as a party to the Claimant's contract of employment, it is accepted therefore that the proper Respondent to these proceedings is the United States of America (“USA”). There was a formal amendment to this effect on 5 June 2014.
2. The claim is for both direct and indirect discrimination under the Equality Act 2010. The protected characteristic relied upon is nationality, that is race. The Claimant is a UK national; the comparators for the purposes of his discrimination claim are USA nationals also working for AAFES in this country.
3. On 2 January 2014 the claim was served on AAFES's personnel office at RAF Feltwell, Norfolk, the address on the Claimant's contract of employment. A week later it was returned by the US Air Force host nation attorney in the UK indicating that the USA was only amenable to service through the procedures applicable to a foreign sovereign. The papers were therefore re-served through the appropriate diplomatic channels in accordance with section 12 of the State Immunity Act 1978 (“the 1978 Act”). Service was effected in Washington DC on 27 February 2014. No response was received by the due date, which was extended, also under section 12 of the 1978 Act. Judgment was therefore issued on 5 June 2014 pursuant to rule 21 of the Employment Tribunals Rules of Procedure 2013. This judgment was also served in accordance with section 12 and [the] time [was] extended within which to apply for reconsideration. Only on 16 September 2014, six days before the expiry of the extended time period and notwithstanding an earlier indication from the Tribunal that it was not only prepared to treat the USA's “note verbale” dated 27 June 2014 as an application for reconsideration but also minded to grant that application, did the Respondent, through its solicitors, apply for reconsideration. The Respondent then asserted that consideration had not been given to section 1(2), which requires that a court give effect to the immunity conferred by Part 1 of the 1978 Act even though the State does not appear in the proceedings in question. The judgment was revoked on 21 October 2015. The case was then listed for a preliminary hearing to consider the issue of jurisdiction, which was, by consent, adjourned from 11 December to the date of this hearing.
4. The basis of the Respondent's claim of State immunity was not set out until the late submission of counsels' skeleton argument on 3 December 2014. It then became apparent that notwithstanding the considerable delay in these proceedings, during the entirety of which period the Respondent had been asserting that Part 1 of the 1978 Act applied, its primary contention was that those statutory provisions did not, in fact, apply to this claim by virtue of section 16(2). Mr Sarooshi does now acknowledge that this late change of tack will have led to delay, and no doubt expense, but correctly submits that because it is a matter that goes to the jurisdiction of this tribunal the Respondent is not debarred from taking the point.
5. Section 16(2) of the State Immunity Act 1978 provides as follows:
This Part of this Act does not apply to proceedings relating to anything done by or in relation to the armed forces of a State while present in the United Kingdom and, in particular, has effect subject to the Visiting Forces Act 1952.
6. I can deal with this point fairly shortly as a preliminary matter. In the course of discussion, whilst not abandoning the point entirely, Mr Isaacs has accepted that it is a “bold submission” to argue that the acts of AAFES as an employer are not done by or in relation to the US armed forces. It is accepted that AAFES by its constitution is an integral part of the US armed forces and falls squarely within the military chain of command. Even if it is arguable that it fulfils an ancillary function rather than a purely military one (“the provision of a...
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