United States Of America v Hicks [1994] UKEAT 1070_94_2411

EAT

United States Of America v Hicks

[1994] UKEAT 1070_94_2411 · 1994-11-24

HIS HONOUR JUDGE J HULL, QC : Mr Hicks, the Respondent to this Appeal, is a gentleman aged 57 and we are told that he is a citizen of the United States.

For many years now, since 26 September 1976 apparently, he has been employed as a civilian by the United States Air Force. He was employed by the United States Air Force in this country looking after and maintaining bowling equipment. He was given notice by the Air Force Authorities that his employment was to end on 1 June 1993. That notice was given on 15 April, called "Notification of Separation" , and so Mr Hicks was, in our language, to be made redundant or to be dismissed at the end of that time.

He very shortly afterwards launched his application to an Industrial Tribunal (that was on 26 August). He sought compensation for unfair dismissal, he sought a redundancy payment and he sought a Declaration under Section 11 of the Employment Protection (Consolidation) Act [1978] with regard to the terms of his employment. We know nothing of the details, but it may very well be, particularly in view of his length of employment, quite a substantial matter which the Industrial Tribunal will have to consider if the case is heard on its merits.

On 28 December 1993, the United States filed their "IT3". The delay was apparently due to the diplomatic niceties of serving a foreign sovereign through the proper channels and in that answer, they made no reply to any of the substantial matters which were raised in the Originating Application. They said that the United States was immune from jurisdiction. That has been explained to us further today by Mr James, who is an adviser employed by the United States. He explains that this matter, because of the provisions of Section 16(2) of the State Immunity Act [1978] is not governed by that Act and falls to be considered under the common law and the Law of Nations of State Immunity, which is a far from simple topic and that is, he says, because the employee concerned (Mr Hicks), is an American citizen and accordingly he says, so far as the United States is concerned, this is a matter governed by the United States' domestic law.

This being taken as a preliminary point, the Industrial Tribunal sat under the Chairmanship of Mr Ash with his two industrial members at Bury St Edmunds on 15 June 1994. Their decision which is before us, but which we certainly have not considered the merits or correctness of in any way, was not promulgated until 13 September 1994 and that was a delay, therefore, of nearly three months for which the Chairman wished to express his regret, saying that he pleads "pressure of work" for the delay which occurred.

They decided that the United States had not established state immunity from suit and therefore they would continue with the hearing and Directions were given on 27 September which we have not seen, but which evidently included fixing a date on 1 December 1994, that is to say a few days from now. That was notified to the parties on 18 October; that the hearing date was to be on 1 December 1994.

On 20 October 1994 (that was only two days afterwards), the United States having, no doubt considered as best they could the merits of the decision against them, gave Notice of Appeal to this Tribunal which was received here apparently on 24 October. Now of course, this is no ordinary case, because of the impleading of a foreign sovereign. The United States has to be very careful how it approaches the matter. It is entitled of course to take before any Tribunal where it is impleaded the point about its sovereign privilege, its sovereign immunity, but it must do no more. It is in danger, if it takes any other step in any proceedings, of being held to have waived its sovereign immunity.

On 28 October, in a letter at page 5 of the Bundle, the United States wrote to the Secretary of Tribunals, saying:

"...I can confirm that an appeal has been lodged with the Employment Appeal Tribunal in relation to the decision of the Tribunal dated 13 September 1994. I attach a copy of the Notice for your file.

In the circumstances, I request that the hearing of this action be adjourned pending the hearing of the appeal..."

That was dismissed out of hand. The Chairman (Mr Ash) said as follows:

"...The full hearing goes ahead on 1.12.1994. My directions of 27.9.94 stand..."

So that was what was said there. Then the United States (acting through Mr James) made a further request, referring to this letter and saying:

"...Is the Chairman prepared to hear argument in relation to an application for an adjournment? If so, could time be made available immediately for such a hearing. If the Chairman is not prepared to hear argument, I will assume that his decision is final and proceed accordingly..."

The reply is at page 8. The Chairman said as follows:

"...The case is to be heard in the normal way. He can always apply for an adjournment at the hearing. However unless he has a novel argument his chances of success are very slim. For the last time he is reminded that it is normal for tribunals to hear relatively straight-forward cases regardless of appeals, which may take up to 2 years to be heard. The interests of justice are best served by such a course, not heard because any other approach would deprive the applicant of interest on any award should the appeal fail..."

Now that is an argument from convenience and of course, in the ordinary case, the decision of an Industrial Tribunal Chairman whether to adjourn is a matter of discretion for him, with which we are extremely reluctant to interfere, but the United States, nonetheless, appeals to us against that refusal. I should say that it is said by Mr Oudkerk (Counsel for Mr Hicks) that in fact there has been no refusal. In fact, all the Chairman has done is to say "I will hear this application before the substantive hearing" . But that was, a decision and it appears to us to be merely playing with words to say that it is not a refusal. It was a refusal of an adjournment before the hearing, pending the hearing of the Appeal, and it seems to us that there was a perfectly plain decision absolutely at the start that this application for an adjournment would be refused in the sense that of course, as we have said, it could be renewed at the hearing. There was a rather unfortunate indication given of the cast of the Chairman's mind when he said that there would have to be some novel point to have any chance of success or, words to that effect.

Mr James says, justice requires that the matter should not be heard pending the Appeal to this Tribunal. The reason for that is, he says, self-evident. If the application for an adjournment is deferred to the hearing (and the indications are that it will fail in view of the remarks which I have read), then of course the Tribunal will, in all probability, embark on its merits enquiry into the complaint which is made to it. The United States will have to decide whether to attempt to take part in the merits hearing and it may very well be impossible for it to do so, since it would have at that stage to put forward a case which of course it has not pleaded yet; or on the other hand, the United States might simply ignore the hearing, saying "Well, we have appealed, we are appealing and this hearing, in our view, is a nullity - we take no part, we ignore this hearing" and perhaps just simply leave or sit at the back and take a note. Is that what is to happen? Looking at it from another point of view, the point of view of Mr Hicks, if the hearing does go ahead, he will waste time, and possibly a good deal of expense too, to obtain a result which, if the Appeal to this Tribunal succeeds will be utterly useless to him. So he will be prejudiced in that way. Further to this, it appears to us, certainly to me (speaking personally) to be outside our experience that such application for an adjournment should be refused out of hand in this way or indeed at all. The Chairman knows very well that if the appeal to this Employment Appeal Tribunal succeeds, he will be held to have no jurisdiction to proceed and he is allowing to be impleaded a foreign sovereign, indeed a friendly foreign sovereign at a time when that sovereign is appealing against the decision of the Industrial Tribunal itself, in which it has decided that it has got jurisdiction. That appears to us to be contrary to the ordinary ideas of justice. Of course it would be quite different if it could be suggested on behalf of Mr Hicks that the United States was delaying this Appeal, or that the Appeal was not prosecuted in good faith or anything of that sort, but there is no suggestion of that sort whatever, and we understand that indeed another division of this Employment Appeal Tribunal is likely to hear the Appeal fairly shortly. We cannot say anything about that, not having consulted the Listing Officer or the President on the matter, but we understand that to be the position. It seems to us extraordinary that any Court in this Country should proceed on the grounds of general convenience or the importance of getting on with litigation, although they are very important considerations of course, when the case is brought against a foreign sovereign state which is appealing against the decision of the Tribunal itself that it has jurisdiction. We all think that there is only one decision which could have been reached when the Chairman was informed that the Appeal to this Tribunal had been launched. It is, so to speak, a feature which makes that even plainer when one recites the dates which I have recited, showing that the Tribunal itself had taken nearly three months to inform the parties that it did have jurisdiction and then fixed a date for the hearing so shortly after that that the United States was inevitably embarrassed in considering what course to take and whether to appeal.

It seems to us that the Chairman (in those circumstances) like any other Tribunal in such circumstances should have said "No, we must await the result of this Appeal which will say whether we ourselves were right to assume jurisdiction, or whether we were wrong, in which case we shall of course have no jurisdiction. We shall have wasted a great deal of money, to say the least of it, and perhaps embarrassed a foreign state if we attempt to go ahead without waiting for the decision of the Employment Appeal Tribunal."

So in those circumstances, we think the Chairman must have acted on a false or irrational basis and not addressed his mind properly to the matter. It was in our view an irrational decision in the technical sense, that is to say, it was not one which we think the Chairman was entitled to come to in the circumstances. His discretion could, in the circumstances, only be exercised in favour of granting an adjournment and therefore we are going to make an order that this application to the Industrial Tribunal is to be adjourned and that a date is not to be fixed for hearing until after the Appeal to this Employment Appeal Tribunal has been heard and determined. In those circumstances lest it should be said that there has been unnecessary delay or bad faith in prosecuting the Appeal, we must of course allow liberty to apply to this Tribunal. For the moment, we simply make the Order that the adjournment is to be granted and that a hearing date is not to be fixed until after the disposal of the Appeal to this Tribunal.