MRS A BRYANT v THE FOREIGN & COMMONWEALTH OFFICE [2003] UKEAT 174_02_1003

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 174_02_1003Case No Appeal No. EAT/174/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS A BRYANTAPPELLANTTHE FOREIGN & COMMONWEALTH OFFICERESPONDENT
Before
Mr Justice BurtonDate 10 March 2003
[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON For the Respondent MR PHILIP COPPEL (of Counsel) Instructed by: The Treasury Solicitor Queen Anne's Chambers 28 Broadway London SW1H 9JS THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) This is an appeal by Mrs Bryant against the Decision of the Employment Tribunal sitting at London Central, after a hearing on 19 November 2001, handed down on 13 December 2001, that it did not have jurisdiction to hear her claims of unfair dismissal, sex discrimination, breach of the Equal Pay Act and breach of contract. Before the Employment Tribunal, she was represented by Mr Raymond of Counsel, with Mr Coppel of Counsel appearing for the Respondent, the Foreign & Commonwealth Office. Before us, she has ably and strenuously represented herself, Mr Coppel, again, appearing for the Respondent.[2]She worked at the British Embassy in Rome with a position of responsibility in respect of police and judicial liaison, until the termination of her employment on 15 June 2001. Of course, the complaint she has arises largely out of the termination of her dismissal, the circumstances of which she set out in her Originating Application.[3]As this was a jurisdiction hearing, no findings were made as to the merits one way or the other of her case. The Tribunal did, however, make findings of fact in relation to the contract, which were necessary for the Tribunal to make for the purpose of deciding jurisdiction, and without reciting them all, they can be summarised in the following way, namely that she was engaged and employed at all times outside the United Kingdom; her post did not, on their findings, involve reporting back to or taking instructions from the Respondent's offices in the United Kingdom; her duties were carried out entirely in Italy; she was paid at local rates, and employed on local terms and conditions, and the conclusion of the Tribunal was that her employment was subject to Italian law.[4]Albeit that originally incorporated in her Notice of Appeal was an assertion that the Tribunal erred in making some or all of those findings, which are more fully set out in paragraph 4 and 12 of their Decision, this Tribunal, differently constituted, at the preliminary hearing of the Appeal, did not give permission to proceed with that ground, but simply in relation to what were then characterised as grounds 2 and 3 of her Notice of Appeal, to which I shall return.[5]There had also been some discussion below in relation to a generalised assertion that in some way, because the Appellant worked in and for the British Embassy in Rome, that the ground constituted by the embassy should be regarded as part of the United Kingdom for the purpose, and that too, insofar as pursued, or capable of pursuit, has certainly not been permitted to be pursued on appeal.[6]The claims that she makes were of four kinds, as previously indicated. So far as the Equal Pay Act and the Sex Discrimination Act are concerned, those two statutes have express provisions in relation to abjuring extra-territorial jurisdiction, so far as the Courts of England and Wales are concerned, to which we will briefly turn, and although they formed, on a token basis, part of the Appellant's appeal, she has not addressed any submissions in relation to them. Her appeal has largely rested on her case that she should be entitled to pursue her claim for unfair dismissal in this country. She did not add anything of any substance, either orally or in writing, to support the appeal in respect of breach of contract, although we indicated, when she rose to begin her submissions, that we were favourably disposed towards that aspect of her appeal in any event.[7]In the able submissions to which we have referred, therefore, the vast bulk has been dedicated towards her appeal in respect of unfair dismissal. The setting for that appeal should be briefly explained. She does not, although Mr Raymond put the case on this basis below, support any proposition that the statutory jurisdiction of this Tribunal in relation to unfair dismissal should be regarded as unconditionally extra-territorial and thus available to anyone who works anywhere in the world, but is able to sue a British employer domiciled here. We are satisfied that that would have been unarguable, for reasons that will appear later when we deal with her submissions. Her case finally slimmed down to a much more limited basis and, of course, directly relevant to her own circumstances, although she asserts that they would not be individual to her, but that she stands as an exemplar, as far as she is concerned, of others in a similar position.[8]She points out that, as an employee of a mission in another country, she falls within the definition of those who, whether under the international convention, in this case the European Convention on State Immunity or, in respect of any particular state's own laws on sovereign state or diplomatic immunity, would be likely to be the subject of such immunity; such that a state could not be sued in the Courts of another state, based on the principle referred to in Latin in the report of the European Convention on State Immunity as par in parem non habet imperium .[9]She has pointed to a case in the Courts of Italy which appears to form very much a part of the thinking behind her approach to the proceedings she has brought against the United Kingdom, called Bulli Dario , of which we have a translation of the short form decision of the Supreme Court of the Republic of Italy, dated 15 October 1987. Senor Bulli Dario was employed, it seems, by the British Embassy in Italy as a commercial and consular assistant in Venice as from 1965, and it seems that, in relation to that case, the United Kingdom did not waive any immunity it otherwise had, and the Republic of Italy, in those circumstances, upheld the claim of state immunity, or, at any rate, did not permit Senor Bulli Dario to pursue claims in the Italian Courts in respect of complaints in relation to his employment, against the United Kingdom.[10]By reference to that reported case in 1987, in respect of an Italian national, Mrs Bryant concluded that she was not going to get relief from the Italian Courts, or, at any rate, that she might not, and hence, she explains, she brought the claims in this country in the Employment Tribunal. Her dilemma, as she sought to explain to us, is, and the unfairness, as she asserted it to be, arises, because if she and other employees of diplomatic missions abroad cannot sue in the place where they are employed, by virtue of the existence of diplomatic immunity, then they should be permitted to sue in the country of which they are a national, at any rate, against their employer, namely the Courts of the employer.[11]Consequently, the case that she seeks to make is not for an extra-territorial extension simpliciter of the employment legislation, but, at least so far as concerns those people who are English nationals who were employed abroad in a diplomatic mission by their government, and who are unable to sue that government in the local Courts by virtue of the existence of diplomatic immunity.[12]The case that was put forward by the Respondent, not appreciating, perhaps, certainly by virtue of the change of the representation as between the Employment Tribunal and the case here before us, not expecting the limited case that has been put, was dedicated, in the Skeleton Argument of Mr Coppel and his authorities, to meeting the broader proposition that the Employment Rights Act and the Employment Tribunals Act should be seen as being extra- territorial.[13]The example adopted in terrorem or ad absurdum , (and I use Latin without apology in this case both because we are not the High Court, and also because Latin appears to have been used by the parties with a good deal of facility), was the example of someone working full-time in Wisconsin: why that state should have been the subject of the scepticism and ire of Mr Coppel, I do not know; we, for some reason, latched onto Peru or Senegal in the course of argument. But the submission, to which we shall turn, that was made by Mr Coppel was that it cannot be the case that the statutory remedy of unfair dismissal should be available to someone working full-time in Senegal, Wisconsin or Peru, in local circumstances and governed by local laws, simply because they may be able to find a way of suing their employer – who need not necessarily, of course, on that analysis, be the British Government, but could, for example, be a British company or even a subsidiary of a British company; if a case could be brought direct against the parent, on some basis of agency or otherwise – by virtue of the alleged extra-territorial effect of the legislation.[14]To meet that broad argument, which was the argument that was addressed by Mr Raymond on Mrs Brown's behalf below, and, consequently, addressed by the Employment Tribunal, Mr Coppel produced, and no doubt referred below to, a number of authorities of great influence, and to which respect must be paid, indicating that the presumption is normally against the extra-territorial effect of legislation - we shall again refer to those in a moment. That is not to say, of course, that the British Parliament cannot legislate extra-territorially, and if it does so, it would be conscious, so far as it is required to be, of not trampling on the separate sovereignty of other countries, or on the comity of nations. But if it does not do so expressly, there is not ordinarily an implied presumption of extra territoriality; rather the presumption is the other way.[15]In those authorities, there is occasional reference made to the fact that there may be a difference in addressing the remedies and rights and duties of a British Government vis-à-vis British subjects or nationals abroad, and vice versa; such that it is not necessarily the case that extra-territoriality vis-à-vis British subjects is to be treated in the same way as purported extra- territoriality in relation to those who are subjects of other countries, and that certainly is so in terms of the philosophical justification for the existence of the presumption against extra- territoriality. But all that is in the realm of argument as to whether a British statute should be construed as being applicable extra territorially.[16]For reasons that are understandable, to which we will refer, Mrs Bryant, who has been looking at it from her own standpoint, as an unrepresented litigant, arguing her case with great force and seeing, as she perceives, injustice, has sought to refer to those cases as indicating, as we have said, that the question of extra territoriality may be looked at differently, depending upon whether British subjects are or are not involved. But of course that is a very different question as to whether, in relation to a particular statute, it can or cannot be construed in a particular way, to which we shall return.[17]The way in which Mrs Bryant began her submissions to us was to say that she wanted to explain why she was here, and she did so in the context which we have just summarised, namely the feeling that if she is not permitted to sue here, then she will be able to sue neither here nor in Italy, and that there may be others in a similar case. That does not automatically assist her to obtain the remedy she wishes, to which we shall return; but in any event, it appears, on the facts of this case, to have been an unfortunate misconception.[18]She began, as we have indicated, with the belief that, because of Bulli , the British Government would not be likely to waive its immunity. She referred us to a letter dated December 1999, the nature and provenance of which is unclear to us, but it is written to a second secretary in management from Mr Watkins in Rome, which said as follows:
"As you are aware our advice to Posts is that they should not normally claim immunity in employment disputes. Our Legal Adviser believes that lawyers unfamiliar with immunity often confuse diplomatic immunity with state immunity."
It then explores that difference, and concludes:
"Legal Advisers can see no basis in international law for saying that LE staff cannot be employed under a contract to which local law applies because local courts and industrial tribunals would not have jurisdiction over the contract. As with Diplomatic Immunity, State Immunity can be waived."
Mrs Bryant indicated that, in the light of that, she knew that there was a policy in relation to waiver, but she did not know whether it would be applied in her case; she appreciated that there was a limited time in which to bring a claim in this country for unfair dismissal and, consequently, she brought it without making any application to the Italian Court to see whether there would be a waiver of immunity.[19]In a letter, which only attracted attention, in fact, in the course of Mrs Bryant's reply, the Treasury Solicitor wrote to her then solicitors, dated 16 October 2001, in which the following is stated:
"My client will however agree not to seek to assert any immunity to which it may be entitled in respect of any proceedings for unfair dismissal brought by Mrs Bryant in the Italian Courts."
Armed with that letter, it appears to us at any rate that there should have been no reason why, even at that late stage, particularly given that there is no evidence before us that any time limit operated in the Italian Courts, Mrs Bryant could not have made her claim, safe in the knowledge that there would be no waiver, in the Italian Court.[20]All this, of course, is irrelevant to the question we have to decide, except in going to explain the context in which Mrs Bryant has brought the claim here; it simply is some comfort that it may be that she can bring her claim for unfair dismissal, if she wishes to do so, in the Italian Courts. There will, of course, nevertheless, be a category of people like her, in respect of which the Treasury Solicitor may not be instructed to grant a waiver, and plainly, if she has a good case, there will be a category of people, such as she, who are British nationals employed abroad by the British Government, in respect of whom there is not a willingness to waive immunity, to which her argument, if it is right, can still apply.[21]We turn then to the question, stripped as we hope it is intended now to be, of the questions of the claim of immunity per se, and of the reasons why Mrs Bryant is here, and dedicated simply to considering, as the Tribunal below considered, whether her argument is right or not. The Equal Pay Act 1970 , section 1, reads as follows:
"(1) If the terms of a contract under which a woman is employed at an establishment in Great Britain do not include (directly or by reference to a collective agreement or otherwise) an equality clause they shall be deemed to include one."
It is manifest in the light of that express provision in the Act that as, on the findings of the Employment Tribunal, Mrs Bryant was not employed at an establishment in Great Britain, she cannot claim the benefit of the Equal Pay Act and her claim was rightly dismissed by the Employment Tribunal.[22]So far as the Sex Discrimination Act 1975 is concerned, the relevant provisions are contained in section 6, which reads:
"(1) It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against a woman - " and section 10 provides by s10(1): "
For the purposes of this Part and section 1 of the Equal Pay Act 1970, employment is to be regarded as being at an establishment in Great Britain unless the employee does his work wholly …..outside Great Britain." Thus, for the purposes of the Sex Discrimination Act also, it is plain that, on the findings of the Employment Tribunal, and, indeed, the effectively admitted facts, the Appellant did work wholly outside Great Britain, and there can be no claim under the Sex Discrimination Act , which was rightly dismissed by the Employment Tribunal.[23]But the claim, as we have indicated, which the Appellant has sought primarily to put forward is in respect of unfair dismissal. The relevant sections of the Employment Rights Act are as follows. Section 94 provides:
"(1) An employee has the right not to be unfairly dismissed by his employer."
Section 205 provides "(1) The remedy of an employee for infringement of any of the rights conferred by" [and various sections and Parts of the Act are set out, including that relating to unfair dismissal] "is where provision is made for a complaint or the reference of a question to an [employment tribunal], by way of such a complaint or reference and not otherwise." And section 230(1) "In this Act "employee" means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment."[24]The argument that was sought to be run below was that, because of the lack of restriction, in any of those sections, to an establishment in Great Britain, or to working in the United Kingdom, those sections should be construed extra-territorially, and hence the alleged right of the man or woman in Wisconsin or Senegal, working entirely outside the United Kingdom under a contract governed by local law, to claim the benefit of the statutory tort of unfair dismissal, and that was rejected by the Employment Tribunal, and as we have indicated, not sought to be embraced before us either by the Appellant.[25]The reasons why that was, in our judgment, rightly rejected and rightly not sought to be supported by Mrs Bryant on appeal, are at least the following:(1) No support can be gained from the amendment out of the Employment Rights Act, by the Employment Relations Act 1999 , of the former provisions of section 196 of the 1996 Act, which limited the right to claim unfair dismissal to those ordinarily working in the United Kingdom. The purpose for that exclusion, it appears to us, was in order that the United Kingdom could comply with the provisions of the Posted Works Directive, 96/71/EC. This compelled this country, like other members of the European Union, to give the same rights to workers from the European Union who were posted here only for a short time, as would be available to those ordinarily working here; and, consequently, it would no longer be right to limit the rights of unfair dismissal to those only working here full-time, but anyone who worked here for any period of time would thus be entitled to make a claim, consequently eliminating the effect of Carver -v- Saudi Arabian Airlines [1999] ICR 991 . Of course, that may have been the purpose of the elimination of section 196, but was the effect of eliminating that section to leave the act with absolute extra-territorial effect?(2) We turn then to the second argument, which is raised by the Respondent, and which found favour with the Tribunal, namely that there is express provision for extra-territorial effect of the Act in certain respects and therefore it is to be assumed that, because there is express provision made in those regards, but for those provisions, the effect would not be, and is not, extra-territorial. Two examples of those were concentrated on below. The first was by reference to s199 of the Act, which related to those employed as seamen in a British ship, and ordinarily resident in Great Britain, but by virtue of the nature of their work, working on ships outside the United Kingdom. Express provision is made to apply the Act extra-territorially, subject to certain conditions, to them. Further by section 201 of the Act there was power to extend employment legislation to offshore employment in the United Kingdom territorial waters. Although not mentioned by the Employment Tribunal, there is also a specific clause, section 215, whose effect is limited to redundancy and which does expressly extend certain redundancy provisions of the 1996 Act to those who are engaged in work wholly or mainly outside Great Britain. But, apart from those express provisions, and there may be others, the Act, the Respondent urges and the Tribunal concluded, was not intended to have extra territorial effect.(3) It is in that context that the third submission arises, to which we have already made reference, namely those cases which underline that statutes ordinarily do not have extra territorial effect, certainly, by implication. Reference is particularly made to Gaudiya Mission -v- Brahmachary [1998] Ch 341 , to Clark (Inspector of Taxes) -v- Oceanic Contractors Inc [1983] 2 AC 130 and to Wanganui-Rangitikei Electric Power Board -v- AMP Society [1934] 50 CLR 581 , as well as to certain passages in Halsbury's Laws of England vol 44(1) at paras 1317-1319 and Bennion Statutory Interpretation, 4 th ed, sections 102, 128 and 131. That principle, the Respondent submits, and the Tribunal found, applies particularly to a right which is engendered by English legislation and does not arise out of common law or out of a right which is necessarily universally applied in all countries of the world, namely unfair dismissal, as opposed to, for example, questions of jurisdiction in respect of breach of contract.[26]Not only do we agree with the conclusion of the Employment Tribunal for those reasons, but, as we have indicated, Mrs Bryant herself did not pursue such a case, and, indeed, accepted it to be unsupportable. Her case, as we have indicated, was that, whatever may be the case in relation to those who are not British nationals, working full time abroad, for commercial employers, whom she accepted did not get the benefit or should not get the benefit of any extra territoriality, there ought to be a provision for those who, like she, are British nationals and citizens, working for the British Government; and, albeit subject to local law, nevertheless are unable, or at any rate possibly unable, to take the benefit of the local Courts if immunity be not waived by their employer.[27]There is no basis upon which we can construe the statutes to which we have referred in order to add that box, or that category of people, on to the existing legislation. Plainly it has been done in relation to mariners and offshore workers; whether it needs to be done is a matter, no doubt, for consideration, particularly in the case of someone unlike Mrs Bryant, where immunity would have been claimed, but whether that is so or not is a matter of jurisprudential or political argument, and can only arise for us, if we are able to construe a section in the way that Mrs Bryant would like. What are we to do? Assuming that we exercise powers by reference to the Human Rights Act , even then there must be a section which we must then be persuaded to construe as purposively as possible in order to comply with human rights, we cannot just re-write the law or add a new provision.[28]It is apparent to us that we would first of all have to define carefully the new category, along the lines of those which we have summarised, and then add a new section to the Act, or at the very least, a new subsection to the Act, in order to bring, within the ambit of what we are otherwise satisfied is an intra-territorial piece of legislation, protection for certain people who work full-time out of the United Kingdom in the position such as Mrs Bryant. This Tribunal cannot possibly so rewrite the legislation; it would be a matter for Parliament, as we see it, if for anyone. Consequently, even as reformulated, the argument by Mrs Bryant cannot succeed as the differently constituted argument failed before the Employment Tribunal.[29]However, Mrs Bryant is not left without remedy. Quite apart from the question as to whether she could now pursue a claim for unfair dismissal in the Italian Courts, and could have done that at least since October 2001, when she was given the assurance by the Government that they would waive state immunity, she has a claim, on her case, for breach of contract, to which we now turn.[30]The Tribunal concluded that there was no jurisdiction in relation to any of the four claims which Mrs Bryant put forward: the first three on the grounds with which we have dealt at some length. So far as the breach of contract claim is concerned, in paragraph 12(xi) the Tribunal said as follows:
"Having determined that the Applicant's contract was governed by Italian law, it follows that the Applicant's claim of breach of contract should also be determined by the Italian courts"
Regretfully, it appears to us clear that that does not follow at all, and indeed, as Mr Coppel has been forced to concede, the fact that the contract is governed by Italian law does not mean that it has to be sued on in Italy. It can be sued on in this country. Although it is right that by virtue of Article 5 of the Brussels Convention, there is jurisdiction and, perhaps, the normal jurisdiction, in relation to a contract of employment, in the Courts of the country where the employment is ordinarily performed, there is the fall-back, under the Convention, of Article 2; and one thing that is clear is that this Respondent is domiciled in this country. Consequently, by virtue of ordinary rules of jurisdiction, the High Court or County Court can hear claims against UK domiciliaries, such as the UK Government, for claims of breach of a contract governed by foreign law. It may be more unsatisfactory for it to be tried here, given the fact that many witnesses may be abroad; but it can be tried here in the ordinary Courts and now, by virtue of section 3 of the Employment Tribunals Act 1996, and the delegated legislation thereunder, any such claim (with specified exceptions) which the High Court can hear can also be tried in the Employment Tribunal.[31]Consequently, there were only two bases on which Mr Coppel sought to uphold the Employment Tribunal's Decision.[32]First he asserted that the case as adumbrated by the Appellant did not sufficiently disclose the nature, or indeed existence, of a claim for breach of contract at Italian law. The Originating Application, to which we referred, in material part reads as follows:
"Matters came to a head in April 2001 when I was abruptly suspended from duty. I was ordered to leave the premises on that same day being escorted by police officers."
The contract of employment under which the Appellant was employed had originally been for a fixed term, but it appears that it had expired by effluxion of time, at least once, and had thus continued on, it would appear, on whatever terms would be implied in Italian law as to reasonable notice. In the absence of any evidence as to Italian law, Italian law would be deemed to be the same as English law, thus: (i) At any rate some requirement for notice would be incorporated, and there is no evidence that there was any payment in lieu of notice given to the Appellant, in respect of her apparent summary dismissal. (ii) Conduct would be required to be relied upon in order to justify such a summary dismissal.[33]In those circumstances, we are satisfied that there is just about enough in the combination of that short description of her case, coupled with the words "breach of contract" in paragraph 1 of the Originating Application, to justify the bringing of a claim. If such a claim is to be struck out by the Employment Tribunal, it thus could not be on the basis of jurisdiction, but it would have to be on the basis of some conclusion that the claim was misconceived within Rule 15 of the Employment Tribunals Regulations, or otherwise unarguable or unsustainable, or improper; and no doubt, if notice of such a case were given, then further particulars of the Appellant's claim would be provided, which might well be sufficient to avoid such a fate. But, certainly, even if it could be struck out, and we express no view as to whether it could be or not, it was not struck out on that basis by the Employment Tribunal, and we are not prepared to consider substituting a view, which in any event we do not have, that the claim could have been struck out on some different basis than that on which it in fact was dismissed by the Employment Tribunal.[34]The second basis on which Mr Coppel seeks to justify the wrongful dismissal claim is by reference to the risk of competing or co-ordinate jurisdictions. He indicates that if, in fact, the Appellant is now going to seek to bring a claim for unfair dismissal in the Italian Courts, if she can, then it would be unfortunate, to say the least, if a claim in Italy for unfair dismissal were to run alongside a claim in London for wrongful dismissal; and we echo that sentiment. Plainly, if Mrs Bryant is to be bringing proceedings, it would be in all parties' interests that they should be brought in one place, and, indeed, it would seem to be more sensible that they be in Italy than in London; but that must be a matter for the parties, and we do not have sufficient of a view to know that this would in fact be the case.[35]But if any of that is to arise, it does not arise now. When there are no proceedings in Italy, the only claim is one which, on the face of it, for the reasons we have given, Mrs Bryant is fully entitled to bring for breach of contract. Questions of stay, or even dismissal, on grounds of lis alibi pendens, if we can use Latin again, may no doubt arise at some future stage; but, at this stage, we are satisfied that it cannot stand in the way of Mrs Bryant bringing her claim, and so there is a claim that Mrs Bryant can bring. She does not have the disadvantage which she feared she might of not being able to bring a claim in either jurisdiction. She might even have a claim for unfair dismissal in Italy, but that is for her. But leaving aside the personal circumstances of Mrs Bryant, which, because she has been unrepresented, formed a substantial part of our consideration this morning, it is neither possible nor right for this Tribunal to say that some people abroad may have some claim, and some may not, either on the basis which Mrs Bryant puts forward or otherwise, and we are satisfied that the basis of her claim must fall away in respect of unfair dismissal.[36]We uphold the Tribunal's Decision so far as that claim is concerned, as we do with regard to sex discrimination and the Equal Pay Act , but we allow her appeal in respect of breach of contract, and she must therefore be permitted, subject to any further application which may be made at the Employment Tribunal, to proceed with that claim.

Cited in 5 later judgments