MRS V ONWUEMENE v NIGERIAN HIGH COMMISSION [2001] UKEAT 13_01_1403

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 13_01_1403Case No Appeal No. EAT/13/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS V ONWUEMENEAPPELLANTNIGERIAN HIGH COMMISSIONRESPONDENT
Before
MISS RECORDER SLADE QCMRS T A MARSLANDMRS D M PALMERDate 14 March 2001
[1]APPEARANCES For the Appellant MISS C LEWIS (of Counsel) Instructed by: Messrs Hereward & Foster Solicitors 145 Barking Road London E16 4HQ MISS RECORDER SLADE QC This is the preliminary hearing of an appeal against the decision of an Employment Tribunal that it had no jurisdiction to consider the Appellant's complaints, as the Respondent, the Nigerian High Commission, had not waived its diplomatic immunity.[2]The complaints before the Employment Tribunal arose out of the Appellant's employment as a secretary at the Nigerian High Commission. The complaints made by her were of unlawful deduction from wages and breach of contract.[3]The Employment Tribunal concluded that the putative Respondent benefited from state immunity as provided for in the State Immunity Act 1978. Relying on Sections 1(1), 4(1), 4(2), 4(3) and the definition of a "member of a mission" within the meaning of the Convention, being the Vienna Convention, scheduled to the Diplomatic Privileges Act of 1964, it concluded that the Applicant was a member of a mission since she was a member of the administrative staff of the mission, and that the High Commission enjoyed state immunity from suit in respect of her claims. Accordingly, jurisdiction was declined.[4]The issue on appeal for this Employment Appeal Tribunal is whether the provisions of the State Immunity Act 1978 and the provisions incorporated thereby relied upon by the Employment Tribunal infringe the principles in Article 6 of the European Convention on Human Rights now incorporated into our domestic law by the Human Rights Act 1998 . On behalf of the Appellant it is contended that the provisions for immunity, as applied in circumstances such as in this case when one is concerned with a secretary and not someone engaged in state or diplomatic affairs, infringes Article 6, and in the balancing exercise that is undertaken, that the Human Rights Convention rights ought to prevail over the state immunity conferred by the legislation.[5]The Appellant, through her Counsel and the written submissions submitted on her behalf, draws attention to the case of Fogarty which is currently before the European Court of Human Rights. It is said that there are similarities between the issues which will be determined in that case, and which would arise in this case, as to whether the immunity conferred is an infringement of Article 6.[6]We express no view on the likelihood of success of such arguments.[7]In this case it is not suggested that domestic legislation can be construed so as to be compatible with the alleged Article 6 rights. What is sought in this appeal is a declaration of incompatibility in accordance with the Human Rights Act 1998 . Section 4(1) of the Human Rights Act 1998 provides:
"(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right. (2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility……… (5) In this section 'court' means- (a) the House of Lords; (b) the Judicial Committee of the Privy Council; (c) the Courts-Martial Appeal Court; (d) in Scotland, the High Court of Justiciary sitting otherwise than as a trial court or the Court of Session; (e) in England and Wales or Northern Ireland, the High Court or the Court of Appeal."
[8]The issue on relief sought in this appeal is whether the Employment Appeal Tribunal is the High Court within the meaning of section 4(5)(e) of the Human Rights Act 1998.[9]The Employment Appeal Tribunal is a creature of statute; its constitution is set out in the Employment Tribunals Act 1996 . Its membership is provided for in section 22 of that Act.

(a) states:

"(1) The Appeal Tribunal shall consist of - (a) such number of judges as may be nominated from time to time by the Lord Chancellor from the judges (other than the Lord Chancellor) of the High Court and the Court of Appeal."
[10]There is provision for temporary membership of the Employment Appeal Tribunal in section 23, and in section 24 provision for temporary additional judicial membership. Those who may be appointed to temporary additional judicial membership are qualified persons, meaning a person who, under section 24:
" (2) …….. (a) is qualified for appointment as a judge of the High Court, under section 10 of the Supreme Court Act 1981, or (b) has held office as a judge of the High Court or the Court of Appeal.

(a) "

[11]It is contended by Miss Lewis, on behalf of the Appellant, that these provisions show that when sitting as judges in the Employment Appeal Tribunal, judges sit as judges of the High Court, and therefore, the court should be regarded as the High Court for the purposes of section 4(5)(e) of the Human Rights Act 1998 .[12]The Supreme Court Act 1981 section 4 provides by section 4(1)(e) that the High Court shall consist of not more than 98 puisne judges of that Court . Miss Lewis contends that it is arguable that the Employment Appeal Tribunal is a High Court for the purposes of section 4 of the Human Rights Act . She refers to a parenthetic comment on page 48 of Blackstone on the Human Rights Act 1998 , at page 48, in support of that contention.[13]Whilst, in our view, the argument that the Employment Appeal Tribunal is a High Court for the purposes of the Human Rights Act 1998 section 4.1(5)(e) is most unlikely to succeed the point is of some general importance. For that reason we consider that the matter should proceed to a full hearing of the appeal to be heard before the President.[14]Although the question of the power of the Employment Appeal Tribunal to make a declaration of incompatibility is the logically prior issue to be determined, we consider that the question of compatibility of the provisions of the State Immunity Act 1978 relied upon by the Employment Tribunal with Article 6 should be heard at the same time to enable the court hearing the full appeal to form a view, if necessary, as to whether permission to appeal to the Court of Appeal should be granted. This appeal should be listed for a full hearing after judgment is given in the case of Fogarty in the European Court of Human Rights.[15]Notice should be served by the Appellant on the Crown in accordance with the Human Rights Act 1998, Section 5. The application by the Appellant for costs is dismissed. The preconditions for the exercise of discretion under Rule 34(1) of the Employment Appeal Tribunal Rules 1993 is not satisfied.