Mangera v Ministry of Defence

Article 6 does not apply to every claim brought by a public servant. Under the functional approach in Pellegrin, employment disputes fall outside Article 6(1) where the employee occupies a post involving the exercise of powers conferred by public law; the armed forces are a manifest example. A statutory race-discrimination right under the Race Relations Act 1976 remains an employment right, even if described as a statutory tort. Article 6 neither creates that right nor changes its domestic legal character. Article 14 cannot extend Article 6 to proceedings outside its scope. A serving soldier who has not complied with the service-redress precondition cannot invoke Article 6 to bypass the Employment Tribunal requirement.

The appellant was a serving soldier who alleged that the failure to provide halal meat in his rations discriminated against him on racial grounds. He brought the proposed claim under Part 2 of the Race Relations Act 1976.

Under section 75(9) of the Act and the Race Relations (Complaints to Industrial Tribunals) (Armed Forces) Regulations 1997, a serviceman had to make a complaint under the applicable service redress procedure before presenting a complaint to an Employment Tribunal. The appellant had not taken that step. On appeal from the Employment Appeal Tribunal, the central preliminary issue was whether Article 6, potentially with Article 14, entitled him to pursue the claim despite that omission.

1. Appeal dismissed. Lord Justice Buxton delivered the judgment, with which Lord Justices Tuckey and Peter Gibson agreed. The court held that Article 6 did not apply to the appellant’s claim, so he could not rely on it to overcome the statutory procedural disability.
2. The court applied the functional approach in Pellegrin v France (2001) 31 EHRR 651. Disputes between administrative authorities and employees occupying posts involving participation in the exercise of public-law powers fall outside Article 6(1). The armed forces were identified as a manifest example. A serving soldier therefore fell within the exclusion.
3. The statutory discrimination right was an employment right. Although described in Sheriff v Klyne Tugs (Lowestoft) Ltd [1999] ICR 1170 as a statutory tort, that expression was merely colloquial. The right had no existence outside the employment context, was created by obligations imposed on the employment relationship, and was enforceable through an Employment Tribunal.
4. The domestic legal character of the right was decisive. Following Matthews v Ministry of Defence [2003] 2 WLR 435, Article 6 operated on the machinery for enforcing rights recognised by domestic law. It did not itself create civil rights or alter their nature. The Court of Appeal’s earlier observations in Matthews, restricting Pellegrin to employment disputes and not ordinary tort claims, were treated as a recent considered observation from which the court should not lightly depart.
5. Article 14 could not bring the claim within the ambit of Article 6 once Article 6 itself was inapplicable. Article 6 was concerned with particular proceedings and was distinct from Convention provisions capable of engaging broader notions of ambit.
6. The court expressed hesitation, without deciding the point because it had not been argued, as to whether the limited requirement to lodge a service complaint constituted an inhibition of access to a court. The appeal was dismissed with costs subject to the public-funding qualifications. Permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): [2003] EWCA Civ 801. Appeal dismissed on the preliminary issue. Permission to appeal to the House of Lords was refused.
• Employment Appeal Tribunal: decision under appeal; the judgment does not state its citation or detailed reasoning.