A Webster & Anor v United States of America

This appeal concerns the circumstances in which the doctrine of state immunity may prevent former civilian employees of the United States of America, who worked for the United States Airforce Europe (USAFE), in the United Kingdom, from bringing claims in the employment tribunal.

Anthea Webster commenced work at RAF Lakenheath (a base that is operated entirely by USAFE). She worked managing USAFE military records. Mrs Webster was dismissed on 10 October 2017 after a period of ill health absence. Mrs Webster describes herself as black and of Afro-Caribbean heritage. Mrs Webster contends that she is disabled by reason of Complex Regional Pain Syndrome. On 5 September 2017, before her dismissal, Mrs Webster presented a claim to the employment tribunal asserting that she had been subjected to unlawful sex, race, age and disability discrimination, that she had suffered an unauthorised deduction from wages and, possibly, that she had been subject to protected disclosure detriment. Following her dismissal, Mrs Webster presented a second claim on 10 November 2017 claiming unfair dismissal, age, sex, race and disability discrimination. A component of Mrs Webster’s claim is that she was, or should have been, carrying out the role of Base Records Manager (“BRM”). The respondent contended that the BRM Role at RAF Lakenheath was designated for military personal only.

On 19 May 2013 Caroline Wright began working as a firefighter at RAF Croughton (another base that is operated entirely by USAFE). RAF Croughton is an intelligence and communications centre from which flying operations are not conducted. On occasions Miss Wright worked at RAF Fairford where flying operations take place. Miss Wright was diagnosed with epilepsy in early 2017. Thereafter she was taken off firefighting duties because the US National Fire Protection Association (“NFPA”) guideline set out periods for which firefighters with conditions such as epilepsy must not have had a seizure before being permitted to return to firefighting duties.

The state immunity issue was considered at a preliminary hearing on 7, 8, 9 & 10 October 2019 and in chambers on 11 October 2019. Employment Judge Foxwell held that state immunity applied and dismissed the claims.

The claimants appealed asserting two grounds of appeal. The first ground of appeal was permitted to proceed, in terms that are the same for both claimants:

The Notices of Appeal included under the heading “Further Information” in respect of the first ground:

Tristan Jones and Celia Rooney, who represent the claimants in their appeals, through the auspices of Advocate, assert at paragraph 5 of their skeleton argument:

Professor Sarooshi QC and Andrew Legg, who represented the Respondent in the appeal, as they did in the employment tribunal (where the claimants represented themselves), assert that the second matter raised in the claimants’ skeleton argument does not form a part of the ground of appeal that has been permitted to proceed. While the point is referred to in the “additional information”, it does not form part of the first ground of appeal, but raises a separate point of law.

The second ground of appeal, asserting that the application of the state immunity doctrine in these cases was “contrary to Article 47 of the EU Charter of Fundamental Rights” was not permitted to proceed.

State immunity is part of the common law and of customary international law. As a matter of common law the doctrine historically was absolute, unless the state chose to waive the immunity. The position changed as a result of the judgment of the House of Lords in I Congreso del Partido [1983] 1 A.C. 244 which introduced into the common law the “restrictive theory” of state immunity. Lord Wilberforce held, at 262 C-G:

There was a degree of codification in the State Immunity Act 1978. The 1978 Act is not applicable in this case because section 16(2) excludes “anything done by or in relation to the armed forces of a State while present in the United Kingdom”.

The common law doctrine of state immunity was considered in Holland v Lampen-Wolfe [2000] 1 WLR. 1573, in which Lord Clyde held at 1579 F to G:

He went on to state at 1580 E to G

Lord Millett described state immunity as a “subject-matter” immunity, at 1583 D:

The application of state immunity to employment was considered by the Supreme Court in Benkharbouche v Embassy of the Republic of Sudan, [2017] UKSC 62, [2019] A.C. 777. Lord Sumption held that the underlying test is that established in I Congreso del Partido:

Lord Sumption described the nature of state immunity:

The case concerned domestic workers in diplomatic missions to whom state immunity applied by virtue of the State Immunity Act 1978. The Supreme Court held that the relevant provisions of the State Immunity Act 1978 were incompatible with article 47 of the Charter of Fundamental Rights of the European Union and with article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, because there was no basis in customary international law for the application of state immunity in an employment context to acts of a private law character such as the employment of purely domestic staff in a diplomatic mission.

Lord Sumption considered how to assess whether the employment of a person is subject to state immunity:

Thus, the test for state immunity in respect of the employment of a person depends on whether the relationship between the parties arises from the state’s sovereign act in employing the individual, because the functions carried out by the person are sovereign or governmental. In such cases the employment of the individual is inherently sovereign and so covered by state immunity.

Lord Sumption held that this was consistent with the approach of the European Court of Human Rights:

Although the examples given by Lord Sumption were specific to employment in diplomatic missions, the analysis that there will be some roles that inherently involve sovereign or governmental functions, some that inevitably do not (such as domestic workers) and others which may or may not, depending on an analysis of whether the functions that are actually undertaken by the individual are sufficiently close to governmental functions, can assist in other circumstances.

Professor Sarooshi, for the respondent, accepted that the authorities establish that:

in considering whether the functions of an employee are sovereign or governmental it is necessary to consider what the employee actually does, rather than what the employee could be required to do under a contract of employment, or how they are described in their job title or description

the functions of the employee are not to be assumed because of the entity for whom, or the location at which, the work is performed

In Benkharbouche, the fact that domestic staff were employed at diplomatic missions did not mean that they were engaged in sovereign or governmental functions. The opposite was the case because the domestic duties of the employees were incapable of being sovereign or governmental functions.

In a somewhat historical case, Sengupta v Republic of India [1983] ICR 221, the application of state immunity was considered in the case of a person who was employed in a role described as a “low clerical grade where he enjoyed very limited diplomatic privileges”. Browne-Wilkinson J set out what he considered to be the components of the overall test, at 228 D to E:

I do not consider that point b involves a test that significantly differs to the test in Benkharbouche for determining whether a person is employed in a role in which their actual functions are sovereign or governmental.

However, in applying point b, the Employment Appeal Tribunal analysed the employment of the claimant as necessarily involving sovereign function because he worked at a diplomatic mission:

Professor Sarooshi accepted that the analysis that work at a diplomatic mission necessarily involves participation in public acts of a foreign sovereign, cannot stand, because it is inconsistent with the reasoning of the Supreme Court in Benkharbouche, and was expressly disapproved.

Matters other than the nature of the functional role that a person is engaged to perform may result in state immunity applying. Take the example of a member of domestic staff at a diplomatic mission. The employment itself will not be subject to state immunity. But, if the domestic worker is dismissed because of accessing state secrets, the dismissal may be subject to state immunity because it is the exercise of a sovereign power and investigating it would involve consideration of the state’s arrangement for security at their diplomatic missions. This alternative basis for state immunity was considered by Lord Sumption in Benkharbouche:

Mr Jones, for the claimants, accepted that the question of whether the employment of staff is a sovereign act because the person undertakes sovereign or governmental duties is separate to the question of whether the termination of such an engagement, or investigations undertaken by the state into the actions of the person, are protected by state immunity.

The employment tribunal made findings of fact and carried out its analysis for each claimant clearly and concisely, but in a manner that requires that the relevant sections of the judgment be read together.

The employment tribunal made key findings of fact under the heading “Mrs Webster’s role at RAF Lakenheath”:

Mrs Webster responded to an advertisement for an ‘Office Automation Assistant’ [43].

Mrs Webster was initially given the task of sorting historical records going back many years. She showed great aptitude and soon took on further responsibilities for records management [44].

The United States Code (“USC”) sets out rules for the maintenance, disposal and archiving of state records that are given effect to in the Department of Defence (“DoD”) though its Records Management Program contained in DoD Instruction 5015.02 [46]. These rules applied to the work Mrs Webster undertook. The instruction provided:

USAF implemented the DoD’s Records Management Program through Air Force Instruction (“AFI”) 33-322. Mrs Webster knew and understood the terms of the Instruction and provided training on records management, based on it, to service and civilian personnel [47].

Records Custodians (“RCs”) are given the primary task of compiling records. This was an additional and often unpopular duty for service personnel [48]. RCs were overseen by Functional Area Records Managers (“FARMs”) [49]. Mrs Webster was responsible for training RCs and FARMs and overseeing their compliance with relevant standards [50].

Mrs Webster was permitted to use base vehicles to attend units to carry out inspections of their record keeping practices [51].

Mrs Webster could theoretically access confidential or sensitive information, but in practice this would have been difficult because she was usually in sight of others and there would have been insufficient time to read or look at individual documents. More importantly, Mrs Webster is a person of integrity who would not do such a thing [52].

Mrs Webster trained herself on the Air Force Records Information Management System (“AFRIMS”) and then trained other people on how to use it correctly and effectively [53].

Mrs Webster oversaw basic records management training which was delivered through an on-line course to all military personnel joining the base [53].

A further aspect of Mrs Webster’s work concerned the destruction or archiving of records. Documents had to be checked and boxed correctly and then were sent to National Archives and Records Administration (NARA) in Washington DC or the Pentagon depending on their classification [54].

Mrs Webster dealt with Freedom of Information Act and Privacy Act requests made by US citizens under US law [55].

Appraisals for the financial year beginning April 2012 showed Mrs Webster’s job title as “Knowledge Operation Manager”. Her performance was rated outstanding in every year apart from the first when it was rated ‘very good’ [56]. The job title “Knowledge Operations Manager” was repeated in service awards given to Mrs Webster. Personnel records continued to refer to her as an “Office Automation Assistant” until October 2016, when her title was changed to “Assistant Base Records Manager” [57].

The organisational chart demonstrated that Mrs Webster’s role fell under a line of command culminating in the Communications Squadron Leader and involving other military personnel [58].

The employment judge set out his analysis under the heading “Did Mrs Webster’s role involve her in the public or governmental functions of the United States of America?”, concluding:

Mrs Webster’s role involved the maintenance, preservation and where appropriate, destruction of US military records [112].

The employment judge stated “In my judgment, military record keeping is a function of the state, the importance of which is illustrated in this case by the provisions of the USC, the DoD Instruction and the AFI Instruction concerning record-keeping described above. Additionally, such records may be classified because they contain state secrets” and “Further evidence that records management is a governmental activity of the United States is the fact that records are archived nationally in Washington DC or at the Pentagon” [113].

“The provision of training on record keeping and inspection to ensure compliance with record keeping procedures, is also, in my judgment, an extension of the same state function” [114].

“Litigation of claims of discrimination in the Employment Tribunal is likely to involve judicial consideration of the policies and objectives of the United States in its management of record keeping and of the staff who work within it. The United States might be called on to justify objectively treatment which might otherwise be unlawful under the Equality Act 2010 were it to apply. In my judgment this would amount to an investigation by a British tribunal into the sovereign acts of a foreign state” [115]

The employment tribunal’s key findings of fact were made under the heading “Miss Wright’s role at RAF Croughton”:

Miss Wright began working for USAFE as a firefighter in May 2013 as a local national direct hire Firefighter (Basic Life Support), Grade 7 [62].

“Miss Wright was based at RAF Croughton, an intelligence gathering centre with no flying operations. The FES at RAF Croughton was part of the Civil Engineering Squadron, which in turn was part of the Mission Support Group” [73].

Miss Wright sometimes did shifts at RAF Fairford (where operational flying takes place) and occasionally at RAF Welford [63].

The main purpose of Miss Wright’s role was preservation of life and the protection of property. In addition, large airfields operating military flights have specific safety requirements for fire cover because of the possibility of dangerous payloads, damaged planes and, in extremis, an attack on the airfield itself [64].

DoD Instruction 6055-56 requires military branches to establish a Fire and Emergency Service (“FES”) with the aim of protecting DoD personnel and the public, preventing or minimising injury and damage to property or the environment, assisting civil authorities under mutual aid agreements and enhancing “mission capability”. Paragraph 4 of the Instruction describes mission capability as being enhanced by protecting US Bases through prevention, education and emergency response [64].

Paragraph 1 of the Air Force Emergency Management Program states its purpose is “the protection of the American people, their way of life and advancing their influence in the world”. Paragraph 3 describes the policy as a means of “sustaining mission assurance, enhancing maintainance operations and restoring combat readiness” [67].

AFI 32-2001 describes the scope of the FES mission as fire protection and minimisation, dealing with the release of hazardous substances whether chemical, biological, radiological or nuclear and dealing with weapons of mass destruction. Aircraft rescue and firefighting were identified as operational tasks.

Miss Wright attended two courses at the Goodfellow Air Base in San Angelo, Texas during her time with USAFE [70]. In 2014 she undertook HAZMAT Commander and Weapons of Mass Destruction training [78].

Miss Wright completed training modules including ‘Airport Fire Fighter’ and ‘Munitions Fire Fighter’ [79].

All training was done using American equipment [79].

Miss Wright cascaded training on a new 911 system to her fellow firefighters [79].

Miss Wright did not have to attend a fire in the five years she worked at RAF Croughton. Nevertheless, firefighters had responsibility for fire prevention and inspections and she had access to many of the buildings on the base for these purposes [74].

Miss Wright had the necessary security clearance to do her job [77].

On the occasions Miss Wright was at RAF Fairford she was part of the firefighting cover for flying operations [75].

The employment judge set out his analysis under the heading “Did Miss Wright’s role involve her in the public or governmental functions of the United States of America?”, concluding:

“The requirement to maintain an independent FES is imposed by US Law, as is the standard which it is required to achieve. The objectives of this policy go beyond those of any domestic fire service: for example, the Air Force Emergency Program says that it is intended to protect the American people, their way of life and to advance their influence in the World. These are all policy objectives of the United States. The same Program refers to FES’s contribution to combat readiness, another function of the state” [120].

“those in the FES, including firefighters, are an integral part of the mission of the bases where they work: where there is flying, the planes could not fly safely without such emergency protection; in the case of RAF Croughton where confidential information is processed, the information could be lost or compromised without protection. The ability of the Respondent to provide a first response to emergencies, including fire, enables it to retain control over incidents which may involve classified or controversial information. It is notable that the United States has restricted the power to contract out FES (unlike the UK) and this demonstrates to me that the provision of an independent fire service is an integral part of US military policy” [121].

“Litigation of claims of discrimination and constructive dismissal in the Employment Tribunal would involve judicial consideration of the arrangements the United States makes to protect its military bases and it could be called on to justify objectively treatment which might otherwise be unlawful under the Equality Act 2010 were it to apply. This would constitute an investigation by a British tribunal of the sovereign acts of a foreign state and that is impermissible at common law under the principle of state immunity” [122].

The employment judge noted that [88]:

The employment judge stated [87] of Benkharbouche:

The judgment is not particularly clear as to the basis upon which the employment judge considered Benkharbouche was distinguishable. I consider that on a fair reading of the judgment EJ Foxwell considered that Benkharbouche was “invaluable” as an insight into the relevant law, but was predominantly dealing with different factual circumstances, because [97]:

In considering the common law the employment judge referred extensively to Holland, noting that “the essential question is the nature of the act in issue: whether it is a governmental act (“jure imperii”), or a nongovernmental act (“jure gestionis”)” [99].

EJ Foxwell was referred to Sengupta. The employment judge stated [101] that “a “lowly clerk” in the Indian Embassy was nevertheless held to be participating in the public functions of a foreign state such that immunity applied”. The claimants’ core argument is that the employment judge misdirected himself as to the law by relying on Sengupta and concluded that the claimants were involved in “public or governmental functions” merely, or predominantly, because they worked for USAFE.

As I explained when considering the relevant law above, the determination in Sengupta that the employment of the claimant necessarily involved sovereign function because he worked at a diplomatic mission is not good law, having been disapproved of in Benkharbouche. However, I do not consider that it was that element of Sengupta that the employment judge relied upon. If he had relied upon that reasoning he would have concluded that the mere fact that the claimants were engaged to work at USAF bases meant that they must have been engaged to carry out governmental or sovereign functions. That is clearly not the case because the employment judge considered the roles that the claimants carried out in detail. The employment judge relied on the four elements of state immunity that Browne-Wilkinson J referred to in Sengupta, which I do not consider involved any error of law.

On a fair reading of the judgment, I consider that it is clear that the employment judge understood that the underlying test is whether an act is private or sovereign/governmental and that in the context of employment this, as Lord Sumption held in Benkharbouche, “will depend on the nature of the relationship between the parties to which the contract gives rise”, which in turn will “depend on the functions which the employee is employed to perform”. I consider this is clear from the headings the employment judge used when setting out the key findings of fact that referred to the “role” of each claimant, and when he asked whether the “role” of the claimant “involve her in the public or governmental functions of the United States of America”. I consider it is clear that the employment judge appreciated that this involved considering the functions that they actually carried out, rather than just considering where, and for whom, they worked. This is made clear when the employment judge stated “I have reached the same conclusion in Miss Wright’s case, albeit she performed a very different role from Mrs Webster” [119]. This demonstrates that the employment judge appreciated he had to consider the specifics of the roles undertaken by each claimant and could have reached different conclusions in respect of their different roles.

I reject the assertion that the employment judge applied an incorrect test to determine whether state immunity applied.

The claimants contend that “the Judge focused too heavily on the general context of the Appellants’ employment, which in each case was at a military base, and failed to give proper consideration to whether each of the Appellants was personally engaged in the exercise of the public or governmental functions”. While the analysis section of the judgment focused on the military nature of the roles that the claimants undertook, that has to be read in the context of the specific factual findings of the employment judge about the functions of the claimants. The ground of appeal is, in reality, one of perversity. In Benkharbouche Lord Sumption distinguished between three types of employees in diplomatic missions; those who have inherently governmental function at one end and those whose domestic duties are inevitably private. In the middle there are technical and administrative roles that may, or may not, be sovereign or governmental. Determining which side of the line an employee in the middle category falls is inherently a matter of factual assessment that is for the employment tribunal. The roles and functions undertaken by the claimants put them in this middle territory. I do not consider that the claimants are able to establish that the employment judge erred in his analysis of whether state immunity applied. He reached a factual determination that was open to him.

The employment judge also considered that state immunity applied because the claims would involve “judicial investigation” into the respondent’s policies and objectives. While the analysis was included in the same sections as where the employment judge considered whether the job functions of the claimants were such as to attract state immunity, it is a distinct point of law. It is not inherently a part of the ground of appeal that was permitted to proceed. It is not live in this appeal.

That said, were the ground properly before the Employment Appeal Tribunal, I consider that the employment tribunal’s finding in this regard was a factual determination that was open to it. Furthermore, as the ground of appeal as asserted fails, the alternative ground would not have altered the outcome of the appeal.

It is hard not to feel sympathy for the claimants who were accepted by the respondent to have been exemplary employees, particularly because the employment tribunal found that they were led to believe that they would be subject to the protections of UK employment law. Key to the determination that state immunity applies was the fact that the claimants were engaged in sovereign activity, the defence of the United States of America and its allies. It is for the United States of America to decide whether to rely on state immunity, the extent to which foreign nationals who work supporting the defence of the United States may litigate in the United States, and what alternative benefits, if any, are provided for foreign staff. Where state immunity applies it is because it is not the business of judges of one sovereign state to adjudicate on the actions of another sovereign state. The appeals are dismissed.