A Webster & Anor v United States of America

Under the restrictive common-law doctrine of state immunity, a foreign state is immune from an employment claim arising from an inherently sovereign or governmental act. The usual question is whether the functions the employee actually performs are sufficiently governmental. Job title, contractual possibility, employer and workplace do not decide that question.

The classification is fact-sensitive. An appellate court will not interfere with a tribunal’s evaluative finding if it was open on the evidence. Even where employment is not itself sovereign, particular treatment of an employee may attract immunity if the claim engages sovereign interests, such as state security or military recruitment policy.

Two former civilian employees of the United States Air Force Europe brought Employment Tribunal claims after working at United States-operated bases in the United Kingdom. Mrs Webster managed, trained staff in, inspected and dealt with the preservation, destruction and disclosure of United States military records. Miss Wright was a firefighter at military bases, with duties connected to emergency response, base protection and flying operations.

At a preliminary hearing in October 2019, the Employment Tribunal held that state immunity applied and dismissed both claims. The claimants appealed, contending that the tribunal had treated work at a military base as sufficient to establish a sovereign function, rather than considering their personal functions.

The central issue was whether their actual roles involved them in the public or governmental functions of the United States so as to engage common-law state immunity.

1. Appeals dismissed. Section 16(2) of the State Immunity Act 1978 excluded acts done by or in relation to a foreign state’s armed forces while present in the United Kingdom. The issue therefore fell to be decided under the common-law restrictive doctrine of state immunity.
2. The governing distinction was between sovereign or governmental acts, jure imperii, and private-law acts, jure gestionis. In employment cases, the usual inquiry concerns the relationship created by the contract and, in particular, the functions the employee is employed actually to perform. The inquiry is fact-sensitive. It is not answered by the employee’s job title, contractual possibilities, employer, or the location of the work.
3. The Employment Judge had correctly directed himself. He did not reason that the claimants’ work was sovereign merely because it was performed at United States military bases. He made detailed findings about the functions each claimant performed and recognised that their substantially different roles might have led to different conclusions.
4. Those findings entitled the tribunal to conclude that Mrs Webster’s military-records role was governmental. It concerned preservation, archiving and destruction of United States military records, compliance training and inspections, and disclosure requests. They also entitled it to conclude that Miss Wright’s firefighting role was integral to the protection and operation of United States military bases, including their military mission and, where relevant, flying operations. The Employment Judge’s conclusion that both roles were sovereign functions was an evaluative factual conclusion open to him.
5. The earlier suggestion that a person necessarily participates in sovereign functions simply by working at a diplomatic mission was not good law following [2017] UKSC 62. The Employment Judge had not relied on that proposition. His reliance on the four matters identified in [1983] ICR 221 disclosed no error.
6. The separate proposed challenge to the tribunal’s conclusion that litigation would require investigation of United States policies and objectives was not within the permitted ground of appeal. In any event, that factual conclusion was open to the tribunal and could not have altered the result.

1. Employment Appeal Tribunal: The appeals were dismissed. The Employment Tribunal had made no error of law in holding that common-law state immunity applied.
2. Employment Tribunal: At a preliminary hearing held from 7 to 11 October 2019, Employment Judge Foxwell held that state immunity applied and dismissed both claims.