Fogarty v. the United Kingdom [GC]

Information Note on the Court’s case-law No. 36

November 2001

Fogarty v. the United Kingdom [GC] - 37112/97

Judgment 21.11.2001 [GC]

Article 6

Civil proceedings

Article 6-1

Access to court

State immunity bar on claim of sex discrimination in respect of refusal of employment by foreign embassy: no violation

Facts: The applicant, an Irish national, was dismissed from post as an administrative assistant by the United States Embassy in London. She brought proceedings against the United States Government, alleging sex discrimination. Her claim was upheld by an industrial tribunal and compensation of £12,000 was agreed between the parties. The applicant subsequently applied unsuccessfully for other posts at the embassy. She brought further proceedings in the industrial tribunal, claiming that the refusal to employ her was a consequence of her previous claim and thus constituted victimisation and discrimination under the Sex Discrimination Act. The United States Government notified the tribunal that it intended to claim immunity from jurisdiction and submitted an affidavit to the effect that the posts involved were part of the administrative and technical staff of the embassy and thus covered by immunity. The applicant was advised by counsel that the United States Government was entitled to claim immunity and that there was no domestic remedy.

Law: Article 6 § 1 – Whether a person has an actionable domestic claim may depend not only on the substantive content of the right as defined under national law but also on the existence of procedural bars. It would not be consistent with the rule of law or the basic principle underlying Article 6 § 1 if a State could, without control by the Convention organs, remove from the jurisdiction of the courts a whole range of civil claims or confer immunities on large groups or categories. In the present case, the proceedings which the applicant intended to pursue concerned a recognised cause of action, namely sex discrimination in employment, and the grant of immunity did not qualify a substantive right but constituted a procedural bar on the courts' power to determine the right. It was not necessary to decide whether the applicant's case fell within the category of disputes concerning public servants which was excluded from the scope of Article 6, and the Court proceeded on the basis that Article 6 was applicable.

The right of access to court may be subject to limitations, provided they do not impair the very essence of the right. Such limitations must pursue a legitimate aim and be proportionate. The grant of sovereign immunity to a State in civil proceedings pursues the legitimate aim of complying with international law to promote comity and good relations between States. As to proportionality, the Convention should as far as possible be interpreted in harmony with other rules of international law, including those relating to State immunity. Thus, measures taken by a State which reflect generally recognised rules of public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to court. In that respect, international practice is divided on the question whether State immunity continues to apply to proceedings relating to employment in foreign embassies and, if it does so apply, whether it extends to disputes involving all staff or only senior members. Certainly, the United Kingdom is not alone in holding that immunity applies. Moreover, the proceedings in the present case did not concern the contractual rights of an existing employee but alleged discrimination in the recruitment process, which in the case of embassies may by its very nature involve sensitive and confidential issues. There does not appear to be any trend in international law towards a relaxation of the rule of State immunity in this area and in these circumstances the United Kingdom could not be said to have exceeded the margin of appreciation.

Conclusion: no violation (sixteen votes to one).

Article 14 in conjunction with Article 6 – The immunity at issue applies to proceedings involving employment of all staff by an embassy, irrespective of the subject-matter and of the sex, nationality or other attributes of the individual concerned. Consequently, the applicant had not been treated differentl from any other person wishing to bring employment-related proceedings against an embassy.

Conclusion: no violation (unanimously).

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

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