Fogarty v. United Kingdom
From DADEL
Case Summary
Fogarty v. United Kingdom
European Court of Human Rights
Application no. 37112/97
Judgment of 21 November 2001
The Applicant, an Irish national, brought this claim against the United Kingdom. She alleged that the state immunity given to the United States under the State Immunity Act 1978 violated her right to access to a court and that she was discriminated against in violation of Article 6 §1 and Article 14 of the Convention. The Grand Chamber declared the application admissible.
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Facts
The Applicant, who had previously been employed as an administrative assistant with the United States Embassy in London, issued proceedings against the United States Government in the North London Industrial Tribunal. She claimed that she was unsuccessful in her applications for re-employment, following the expiry of her contract with the United States Embassy, due to a successful sexual harassment suit that she had previously brought against the United States Government. She alleged that this amounted to victimization and discrimination within sections 4 and 6 of the Sex Discrimination Act 1975. The United States Government gave its intention to claim state immunity in these proceedings. Since the posts that the Applicant had applied for fell under state immunity under the State Immunity Act 1978, the Applicant was advised by counsel that she had no remedy in domestic law.
Admissibility
The Court rejected the Government's argument that the Applicant had no actionable domestic claim and thus Article 6 §1 of the Convention did not apply. The Court noted that Article 6 §1 does not guarantee any particular content for "civil rights and obligations" in the substantive law of the Contracting States, but extends only to disputes over "civil rights and obligations" which can be said to be recognized under domestic law. Section 6 of the Sex Discrimination Act 1975 created a statutory right, thus the Applicant intended to pursue damages for a cause of action well known to English law. The grant of immunity was to be seen not as qualifying a substantive right but as a procedural bar, preventing the Applicant from bringing her claim before the Industrial Tribunal.
Although a question did arise about whether or not the Applicant's case was excluded from the scope of Article 6 §1, based on her duties and responsibilities as a public servant, the Court found it unnecessary to determine this issue and proceeded on the assumption that Article 6 was applicable for this case.
Merits
The Court noted that the right of access to court is not absolute, but may be subject to limitations. Contracting States enjoy a certain margin of appreciation, as long as it is satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Also, a limitation will not be compatible with Article 6 §1 if it does not pursue a legitimate aim and if there is no reasonable relationship of proportionality between the means employed and the aim sought to be achieved. The Court noted that the limitation caused by the grant of sovereign immunity pursued the legitimate aim in complying with international law to promote comity and good relations through the respect of another State's sovereignty. The Court, in assessing whether the restriction was proportionate to the aim pursued, found that the United Kingdom was not alone in holding that immunity attached to suits by employees at diplomatic missions and it did not fall outside any currently accepted international standards. The Court also noted that the proceedings related to alleged discrimination in the recruitment process, not of the contractual rights of a current employee. There was no trend in international law towards a relaxation of the rule of State immunity regarding issues of recruitment to foreign missions, as these issues by their very nature involve sensitive and confidential issues related to the diplomatic and organizational policy of a foreign State. The United Kingdom did not exceed the margin of appreciation allowed to States in limiting an individual's access to court.
The Applicant was prevented from pursuing her claim due to immunity from the State Immunity Act 1978. The immunity applied in relation to all such employment-related disputes, irrespective of their subject matter and of sex, nationality, place of residence or other attributes of the complainant. Therefore, the Applicant was not treated any differently from any other person wishing to bring employment related proceedings against an embassy and the restriction placed on her right to access to court was not discriminatory.
Decision
The Court held sixteen votes to one that there had been no violation of Article 6 §1 of the Convention. The Court held unanimously that there was no violation of Article 14 of the Convention.
The concurring opinion noted that while immunity is complete when it comes to selecting diplomatic and consular personnel, this may no longer be the case, in certain situations, once the individual has been hired.
The dissenting opinion found a violation of Article 6. The dissent believed that a blanket immunity which automatically blocks access to court, without any discretion for the court to examine the competing interests by reference to the facts of each case, is incompatible with the right of access to the court guaranteed by Article 6 of the Convention. That, combined with the absence of an established international rule supporting the immunity, the fact that the claim of the Applicant was in the nature of an allegation of a violation of a human right, and the fact that there was no alternative means of redress in respect of the Applicant's complaint, led to the dissent.