GRAND CHAMBER

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 37112/97 
by Mary FOGARTY 
against the United Kingdom

The European Court of Human Rights, sitting on 1 March 2000 as a Grand Chamber composed of

Mr L. Wildhaber, President
 Mrs E. Palm, 
 Mr C.L. Rozakis, 
 Sir Nicolas Bratza, 
 Mr M. Pellonpää, 
 Mr L. Ferrari Bravo, 
 Mr Gaukur Jörundsson, 
 Mr G. Ress, 
 Mr L. Caflisch, 
 Mr L. Loucaides, 
 Mr I. Cabral Barreto, 
 Mr K. Jungwiert, 
 Mr B. Zupančič, 
 Mrs M. Tsatsa-Nikolovska, 
 Mr T. Panţîru, 
 Mr E. Levits, 
 Mr A. Kovler, Judges,

and Mr P. Mahoney, Deputy Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 8 July 1997 and registered on 30 July 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the decision of 19 October 1999 by which the Chamber of the Third Section, to which the case had originally been assigned, relinquished its jurisdiction in favour of the Grand Chamber (Article 30 of the Convention),

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having regard to the parties’ oral submissions at the hearing on 9 February 2000,

Having deliberated on 1 March 2000, decides as follows:

 

THE FACTS

The applicant is of Irish nationality, born in 1959 and currently resident in London. She is represented before the Court by Ms. D. Luping, a solicitor practising in London. At the hearing of 9 February 2000 she was further represented by Mr B. Emmerson, Mr A.Clapham and Mr R. Thompson, Counsel.

The Government were represented by Ms. S. McCrory, Acting Agent, Mr D. Lloyd Jones Q.C. and Mr D. Anderson Q.C., Counsel, and Mr O. Paulin and Ms. J. Foakes, Advisers.

The facts of the application, as submitted by the parties, may be summarised as follows.

A. Particular circumstances of the case

On 8 November 1993 the applicant commenced employment as an administrative assistant at the United States Embassy in London, in the Foreign Broadcasting Information Service, which is a subsidiary of the Central Intelligence Agency. She was dismissed from her employment in February 1995. Following her dismissal the applicant issued proceedings against the United States Government in the London North Industrial Tribunal, claiming that her dismissal had been the result of sex discrimination contrary to sections 1(1)(a), 4(1)(d) and 6(2)(b) of the Sex Discrimination Act 1975. In particular she alleged that she had been the victim of persistent sexual harassment from her supervisor and that working relationships had broken down in consequence. The United States Government defended the claim and called evidence in support of this defence. At no stage in these proceedings did the United States Government claim state immunity in response to the applicant's claim. On 13 May 1996 the Tribunal upheld the applicant's complaint. A compensation figure of 12,000 pounds sterling was agreed between the parties.

In June 1995, whilst her first claim in the Industrial Tribunal was still pending, the applicant applied for and obtained a fixed-term 12-month contract within the Foreign Building Operations section of the Embassy. The contract was due to expire in June 1996. In June 1996 and August 1996 (after her award of compensation by the Industrial Tribunal), the applicant applied for at least two of the following posts at the Embassy of the United States: secretary with the Office of Foreign Litigation of the United States Department of Justice, temporary secretary with the above office and temporary secretary with the International Marketing Centre, which is operated by the United States Foreign Commercial Service. On each occasion her application was unsuccessful.

On 15 September 1996 the applicant issued a second application before the Industrial Tribunal. She claimed that the refusal of the Embassy to re-employ her on two of the above posts amounted to victimisation as a result of her previous successful sex discrimination claim, and accordingly constituted a further act of sex discrimination contrary to sections 4 and 6 of the Sex Discrimination Act 1975.

By a letter of 10 January 1997, solicitors acting for the United States notified the Regional Secretary to the Industrial Tribunal that the United States Government intended to claim immunity from the jurisdiction of the Tribunal under sections 1 and 16(1)(a) of the State Immunity Act 1978 (“the 1978 Act”). The letter enclosed an affidavit sworn by the First Secretary at the Embassy, deposing to the fact that each of the posts for which the applicant had applied were part of the administrative and technical staff of the Embassy, and accordingly fell within the ambit of the immunity imposed by section 16(1)(a) of the 1978 Act.

On 6 February 1997 the applicant received the advice of counsel to the effect that the United States Government were entitled to claim immunity under the 1978 Act, and that once immunity was properly asserted there was no means by which a court or tribunal in the United Kingdom could accept jurisdiction to entertain the application.  Accordingly, the applicant was advised that she had no remedy in domestic law.

B. Relevant domestic law and practice

1. The Sex Discrimination Act 1975 (“the 1975 Act”) creates a statutory cause of action which arises when an employer treats an employee or a potential employee less favourably by reason of her sex (“sexual discrimination”), or by reason of the fact that she has taken or intends to take proceedings against any person under the 1975 Act (“victimisation”).

Section 1(1) of the Act defines “sex discrimination” as follows:

A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if:

(a) on the ground of her sex he treats her less favourably than he treats or would treat a man ...”

Section 4(1) of the Act defines “victimisation” as follows:

A person (‘the discriminator’) discriminates against another person (‘the person victimised’) in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has:

(a) brought proceedings against the discriminator or any other person under this Act, or

...

(d) alleged that the discriminator or any other person has committed an act which … would amount to a contravention of this Act or give rise to a claim under the Equal Pay Act 1970 …”

Section 6 of this Act defines the circumstances in which it is unlawful to discriminate against employees and applicants, on the grounds of sex discrimination or victimisation, as follows:

(1) It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against a woman:

(a) in the arrangements he makes for the purpose of determining who should be offered that employment, or

...

(c) by refusing or deliberately omitting to offer her that employment.”

(2) It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her …

(b) by dismissing her, or subjecting her to any other detriment.”

2. The State Immunity Act 1978 provides the following:

Section 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 this Act.”

Section 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 sub-sections (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, sub-section (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.”

Section 16(1)

“This Part of this Act does not affect any immunity or privilege conferred by the Diplomatic Privileges Act 1964 or the Consular Relation Act 1968; and:-

(a) Section 4 above does not apply to proceedings concerning the employment of the member of a mission within the meaning of the Convention scheduled to the said Act of 1964 or of the member of a consular post within the meaning of the Convention scheduled to said Act of 1968.

3. Article 1 of the Vienna Convention on Diplomatic Relations which is scheduled to the Diplomatic Privileges Act 1964 provides the following definitions:

(b) the ‘members of the mission’ are the head of the mission and the members of staff of the mission;

(c) the ‘members of staff of the mission’ are the members of diplomatic staff or the administrative and technical staff, and of the service staff of the mission.

(f) the ‘members of the administrative and technical staff’ are the members of the staff of the mission employed in the administrative and technical service of the mission.”

4. On 3 July 1979 the United Kingdom ratified the 1972 European Convention on State Immunity, which entered into force in respect of that country on 4 October 1979. That Convention provides the following:

Article 5

1. A Contracting State cannot claim immunity from the jurisdiction of a Court of another Contracting State if the proceedings relate to a contract of employment between the State and an individual where the work has to be performed in the territory of the State of the forum.

2. Paragraph 1 shall not apply where:

(a) the individual is a national of the employing State at the time when the proceedings were brought;

(b) at the time when the contract was entered into the individual was neither a national of the State of the forum nor habitually a resident in that State; or

(c) the parties to the contract have otherwise agreed in writing, unless, in accordance with the law of the State of the forum, the Courts of that State have exclusive jurisdiction by reason of the subject-matter.

3. Where the work is done for an office, agency or other establishment referred to in Article 7, paragraphs 2(a) and (b) of the present article apply only if, at the time the contract was entered into, the individual had his habitual residence in the Contracting State which employs him.”

Article 32

Nothing in the present Convention shall affect privileges and immunities relating to the exercise of the functions of diplomatic missions and consular posts and of persons connected with them.”

The United States is not a party to that Convention.

COMPLAINTS

The applicant complains of a violation of her right of access to court under Article 6 § 1 of the Convention. She also complains of a violation of Article 14 in conjunction with Article 6.

THE LAW

The applicant has submitted complaints under Articles 6 § 1 and 14 of the Convention.

The Convention provisions invoked provide the following:

 

Article 6 § 1

“In the determination of his civil rights and obligations …, everyone is entitled to a …hearing … by a … tribunal …”

Article 14

The enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

Submissions by the parties

The applicant

The applicant argues that Article 6 § 1 of the Convention applies. There was a “right” under domestic law to be free from sex discrimination, as evidenced from the applicant’s first successful claim against the Embassy. Sovereign immunity did not extinguish the right but simply prevented the courts from examining disputes thereon. Moreover, the right was “civil”. The posts for which the applicant applied did not fall within the scope of the exception established in the case of Pellegrin v. France (judgment of 8 December 1999, to be published in Reports of Judgments and Decisions 1999). They were of a strictly administrative or secretarial character and they would neither have required nor enabled her to wield a portion of the State’s sovereign power. The applicant was not employed by the United States when the complaint arose. As a result, there was no bond of loyalty. Moreover, her complaint was not about access to the civil service but about sex discrimination. The Industrial Tribunal had no power to order the US Embassy to employ her. The applicant’s claim was limited to pecuniary damages. The decision in the Pellegrin case would not exclude from the scope of Article 6 § 1 a claim for damages arising from an accident at work. The European Court of Justice has held that it is unlawful for States to exclude the judicial determination of sex discrimination claims. Most importantly, the relevant case-law of the European Court of Justice has been inspired by the Convention.

The applicant accepts that section 16 § 1 (a) of the 1978 Act pursues a legitimate aim. However, she submits that it introduces a disproportionate limitation on her right of access to court for four reasons. First, the applicant’s claim concerned the prohibition of sex discrimination, one of the core values of a democratic society, and the right to take proceedings for victimisation. Secondly, there was no alternative means available to the applicant that could have provided a remedy for this complaint. The United States was clearly not prepared to exercise jurisdiction. Thirdly, the United Kingdom was not obliged under international law to grant immunity in respect of the applicant’s claim. Such is the view taken by the courts of a number of Contracting Parties. The tendency towards restricting immunity is reflected in Articles 5 and 7 of the 1972 European Convention on State Immunity. The Government’s understanding of Article 5 of that Convention is supported neither by the general practice of the other members of the Council of Europe nor by academic commentators. It follows that absolute sovereign immunity is not required by considerations of international comity. The appointment of a member of a mission is not covered by Article 32 of the 1972 Convention. In the United Kingdom practice no absolute immunity is claimed in respect of disputes between foreign employees and British embassies. The United States does not consider itself obliged under international law to confer an immunity in respect of all embassy employment disputes. Moreover, the International Law Commission is of the view that disputes concerning habitual residents of the forum State and functions that are not closely connected with sovereign acts of government are not the appropriate subject of a claim to State immunity where the subject matter of the dispute does not involve a court ordering another State to take on an employee. Fourthly, the United States did not claim immunity in relation to the applicant’s first Industrial Tribunal claim. If immunity was not considered necessary in respect of the first claim, it is difficult to see how it can be genuinely necessary to meet the requirements of international co-operation in relation to the second claim. 

The applicant submits that, where a “civil” right to enforce an anti-discrimination provision exists, a restriction of access to court engages Article 14 in conjunction with Article 6 § 1 of the Convention.

The Government

The Government submit that Article 6 § 1 of the Convention does not apply to the proceedings the applicant intended to institute. First, they argue that the applicant was not relying on a “right” that existed in domestic law. The applicant had no actionable domestic claim. The principle of sovereign immunity removed the dispute from the competence of the local courts, which cannot assert jurisdiction over the internal affairs of foreign diplomatic missions. Unlike in Osman v. the United Kingdom (judgment of 28 October 1998, Reports 1998-VIII, p. 3124, §§ 138 and 139), in the present case the domestic courts had no power whatsoever to assess the extent of the exclusionary rule. Immunity was absolute and the applicant had no arguable claim under domestic law that the United States were liable. Moreover, in Osman v. the United Kingdom national law imposed an exclusionary rule on a pre-existing cause of action. In the present case the exclusionary rule has not been expanding into ground which it did not formerly occupy. It is irrelevant that the US Embassy had subjected itself to the jurisdiction of the United Kingdom courts in a previous case brought by the applicant. Contrary to what the applicant argues, Community law has never been relied on to defeat sovereign immunity.

Secondly, the Government claim that there was no “civil” right involved. Referring to the test established in the Pellegrin v. France judgment, the Government point out that the actions of members of diplomatic missions are always considered specific actions of the State. Moreover, States are justified in requiring a special bond of loyalty from embassy staff. The European Court of Justice has considered that a local authority night watchman is among the posts that States may lawfully restrict to their own nationals. The same would apply to posts in embassies. Contrary to what the applicant argues, the present case cannot be distinguished from the case of Pellegrin, in which the applicant had also sought appointment to a post he had previously held.

In the alternative, the Government submit that the restriction on the right of access to court pursued a legitimate aim and was proportionate. The aim to be secured is respect for the independence and equality of other sovereign States in accordance with public international law. The selection of embassy staff is an act jure imperii. Any adjudication upon the fairness of the dismissal of an embassy employee or a decision whether or not to employ her would involve an investigation into the internal organisation of the embassy which would be an interference with the sovereign functions of the State. The analogy with Beer and Regan v. Germany (judgment of 18 February 1999, to be published in Reports 1999) is obvious. The rank of the applicant is irrelevant because the case does not concern diplomatic immunity. Even the service staff of an embassy will often be involved in sovereign activities and have access to confidential information. Article 5 of the 1972 European Convention on State Immunity must be read in the light of its Article 32. It transpires from the latter that the drafters of that Convention wanted to exclude from its scope matters in the exercise of the functions of diplomatic missions, including recruitment for employment in embassies. Given the difficulty in distinguishing between acts jure imperii and acts jure gestionis, it is appropriate to allow States a considerable margin of appreciation and the United Kingdom legislation falls within that margin. The practice of other Contracting States does not support the applicant’s claims and the practice of the United Kingdom vis-à-vis its own embassy personnel is irrelevant.

The Government argue that Article 14 does not apply because the applicant’s principal complaint does not fall within the ambit of Article 6 § 1. In the alternative, they argue that the applicant was not treated differently than any other person wishing to sue the United States Embassy in respect of employment.

The Court’s assessment

The Court notes that the Government, in arguing that Article 6 § 1 of the Convention does not apply to the proceedings the applicant intended to institute, are pleading that the application is incompatible with the provisions of the Convention under Article 35 § 3. However, the Court is of the view that this argument is closely linked with the substance of the applicant’s complaints under Articles 6 § 1 and 14 of the Convention.

Having examined the parties' observations on the substance of these complaints, the Court considers that the application raises serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. The application cannot, therefore, be regarded as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other ground for declaring it inadmissible has been established.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case.

Paul Mahoney Luzius Wildhaber 
 Deputy Registrar President

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