On 27 March 2015, Volterra Fietta won an outright victory for its client the United States of America (the “USA“) in the English courts. In response to an employment claim, a UK Employment Tribunal delivered a ruling in favour of the USA, dismissing the claim and upholding the United States’ assertion of sovereign immunity.
The judgment, which became final on 8 May 2015, marks the end of a long-running claim for compensation by a local civilian employee at a military store on a US military base in the UK. At issue were not only questions of sovereign immunity from the jurisdiction of the English courts but also the interpretation of a number of treaties, including the NATO Status of Forces Agreement (the “NATO SOFA“).
The Employment Tribunal dismissed a number of claims brought by the employee, a UK national, against his former employer, the US Army and Air Force Exchange Services (“AAFES“). AAFES forms an integral part of the US Armed Forces. In common with many embassies, consulates and other governmental instrumentalities, AAFES operates a dual-track employment regime, distinguishing between US and local nationals. This distinction is recognised by the NATO SOFA and in many – though not all – respects mandated by UK and US employment law respectively. Nonetheless the claimant argued that such a distinction is outlawed by UK discrimination legislation.
Judge Lancaster held that the acts of AAFES as an employer were acts by a foreign military force based in the UK and hence fell within the scope of s. 16(2) of the State Immunity Act 1978. This had the consequence that the issue of immunity fell to be decided according to the common law and not under Part I of the State Immunity Act (which contains an exception for employment-related claims).
In a detailed Judgment, Employment Judge Lancaster held that the provision and maintenance by the USA of an AAFES exchange store at a US military base in the UK was an act jure imperii (para. 36 of the Judgment). Judge Lancaster found that the provision of commissary stores to service personnel is, when viewed in light of its general purpose of maintaining military readiness and preserving self-containment of the military base, to be regarded as a public function of the US military, in which the claimant was involved. Judge Lancaster emphasised that the claimant was engaged in this public function “in a more than purely collateral way” as he had been employed by AAFES for many years and had progressed to the exercise of supervisory and managerial functions. For that reason, he was “fully integrated into the nationwide operation of US visiting forces and was in a position of some trust and confidence” (para. 40 of the Judgment; cf. para. 47). The supervisory role played by the claimant as part of his employment at the US base had the consequence that the USA enjoyed immunity under the common law in the present case.
This case – Mr T Harrington v. The United States of America – is one of the caseload of cutting-edge sovereign immunity instructions that States entrust to Volterra Fietta to resolve. The firm regularly defends States, governments, embassies and diplomats from civil claims both in the English courts and in courts around the world. The Harrington judgment already stands out as an important precedent in defending the proper application of sovereign rights and sovereign immunities in local courts.
Robert Volterra and Graham Coop of Volterra Fietta instructed barristers Prof. Dan Sarooshi of Essex Court Chambers and Ms Anna Lintner of Ely Place Chambers to appear for the United States of America in the proceedings before the Employment Tribunal.
Mr T Harrington v. The United States of America (2015) Employment Tribunal Judgment, Case 1807940/2013, 27 March 2015.