Civilian employees of US Air Force who worked at UK bases fail to appeal dismissal of Employment Tribunal claims

About this case:

• Citation:
  [2022] EAT 92
• Judgment:
  External link
• Court:
  UK Employment Appeal Tribunal
• Judge:
  His Honour Judge James Tayler

The first claimant, Anthea Webster, was dismissed from her role in October 2017 and subsequently attempted to raise a claim for race and disability discrimination. The second claimant, Caroline Wright raised a claim after she was taken off her existing duties after being diagnosed with epilepsy.

The appeal was heard by Judge James Tayler. Tristan Jones and Celia Rooney appeared for the appellants and Dan Sarooshi QC and Andrew Legg for the respondent.

Public functions

The first claimant, who described herself as being of Afro-Caribbean heritage, contended she was disabled by reason of Complex Regional Pain Syndrome. She had worked at a US Air Force Europe base, RAF Lakenheath, managing records. Following a period of ill health, Mrs Webster was dismissed on 10 October 2017. As part of her claim, she also contended she was, or should have been, carrying out the role of Base Records Manager. The respondent claimed that this was incorrect, as this role was designated for military personnel only.

The second claimant began working as a firefighter at RAF Croughton, another USAFE base, in May 2013. In early 2017 she was diagnosed with epilepsy and subsequently removed from firefighting duties. This was due to US National Fire Protection Association guidelines, which stated that firefighters with conditions such as epilepsy must not have had a seizure for a certain period of time before returning to active duty.

At a preliminary hearing in October 2019, an employment judge dismissed the claims on the basis that state immunity applied to the claims. Both claimants submitted that the judge was wrong to conclude that their role involved them in the public or governmental functions of the USA such as to engage the doctrine.

Counsel for the appellants argued that the judge had focused too heavily on the general context of their employment rather than on their specific duties and failed to give proper consideration to whether each of them was personally engaged in the exercise of public functions. Second, the judge wrongly concluded that the claims would involve ‘judicial investigation’ into the Respondent’s policies and objectives sufficient to engage the doctrine of state immunity.

Inherently sovereign

In his decision, Judge Tayler observed: “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.”

He continued: “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 v Embassy of the Republic of Sudan (2017), ‘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’.”

Examining the employment judge’s consideration of the appellants’ roles, Judge Tayler said: “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.”

He went on to say: “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.”

Judge Tayler concluded: “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 were therefore dismissed.