Mrs. S. Nolan (Plaintiff) was working at a U.S. Army Base at Hythe Hampshire (the Base). The Base was repairing watercraft and other equipment. The U.S. army referred to the Base as a Reserved Storage Activity (RSA). It employed 200 local civilians whom the LNEC represented. They were all to be laid off.
Since at least early 2004, the U.S. government (Defendant) had been considering whether to close the Base. After a 2006 audit report, it became clear that Defendant had already decided to terminate operations there. The U.S. Secretary of the Army decided to close the Base and the U.S. Secretary of Defense approved his choice.
As it was obliged to do, on May 9, 2006, the Defendant notified the U.K. Ministry of Defence that Defendant was terminating operations at the Base and that the Defendant's facilities at Hythe would revert to the U.K. on September 30, 2006.
Mrs. S. Nolan (Plaintiff ) brought proceedings against the Defendant in an English Employment Tribunal (ET). She claimed that Defendant had breached its obligations under Section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) to timely consult the Local National Executive Council (LNEC) about the proposed layoffs of about 200 civilian staff whom it represented.
The hearing on liability took place on June 11, 2007 and the ET entered judgment on February 6, 2008. It ruled that the Defendant had violated its obligations to consult in accordance with Section 188.
The ET held that: (1) that Consultation did not begin until June 5, 2006; that there appeared to have been no impediment to starting the consultation process right after Defendant had notified the U.K. Government on May 9, 2006 that the Base was to close; that in fact the date of notification to Her Majesty's Government (HMG) fell a substantial time after the Defendant had determined to close its RSA base; (2) that the Defendant had failed to consult staff representatives about the reasons for the Base closure and had told LNEC that the RSA would close and that there could be no consultation on that subject. The ET ruled against the Defendant and it appealed to the Employment Appeal Tribunal (EAT). At no time did Defendant claim sovereign immunity under either U.S. or U.K. law [i.e. the State Immunity Act].
The Defendant stated that this appeal gives rise to the following principal international issue: whether the ET erred in law in holding that a foreign sovereign government has an obligation, in advance of a decision to close a military base, to consult with, and provide information to, the local civilian workforce about the reasons for its closure. The Employment Appeal Tribunal dismisses Defendant's appeal.
"Without disrespect to the sophisticated and imaginative arguments advanced by [Defendant] in support of the proposition that Section 188 should be construed in the light of the jus imperii nature of the decision, the reasons for which the ET held that there should have been consultation with employee representatives, we are not persuaded by them."
"... [T]he principle that underpins the doctrine of state immunity both at common law and under customary international law is that courts will not scrutinise or interfere with decisions that are jus imperii, namely, that are of a sovereign nature. The principle thus affects the jurisdiction of the courts to scrutinise or interfere with such decisions. No authority or learned article was placed before us which establishes or even suggests that the jus imperii nature of an act affects not the jurisdiction of the courts in relation to that act but the construction of a statute or approach to a rule of law of which is engaged by that act." [76, 77].
"The absurdity relied upon by [Defendant] in its construction argument is the prospect of a failure by a foreign state to consult about reasons for the closure of a military base being made the subject of scrutiny by an ET in a claim for breach of Section 188."
"We agree that consultation with employee representatives in advance of a decision to close a military base would be likely to give rise to justified concern about security. Further, we accept that a requirement to consult 'with a view to reaching agreement on reasons for closure would sit uneasily with decision making at the highest level of a foreign government and which engages high level military, political and economic considerations."
"Further it may have been possible for the [Defendant] to establish a defence under Section 188(7) that there were special circumstances rendering compliance with Section 188(2)(a) not reasonably practicable. The [Defendant, however], having submitted to the jurisdiction of the ET did not avail itself of the statutory defence."
"A construction of Section 188 to impose no requirement for consultation with employee representatives about the reasons for a jus imperii decision is not necessary in order to avoid absurdity. Any absurdity involved in subjecting such a decision to scrutiny in the ET could have been avoided by claiming state immunity. The law of state immunity applies alongside all other domestic statutes including employment legislation. The U.K. State Immunity Act (SIA) and the common law of state immunity exist alongside TULRC. ... [A] special construction of Section 188 is not necessary to avoid the absurdity of a jus imperii decision being subject to scrutiny in the ET. The U.S. had two 'escape routes' available to it. It chose not to use them."
". . .[T]he Council Directive 98/59 provides a floor not a ceiling of rights. The U.K. has chosen to implement the Directive by not excluding from the right to be consulted on redundancy, representatives of workers employed by public administrative bodies or by establishments governed by public law referred to in Article 1(2)(b). Indeed many of the cases on Section 188 have been brought by unions representing workers in public authorities. The inclusion of such workers within the scope of the domestic legislation illustrates that Section 188 cannot be said to be confined to consultation of the reasons for commercial decisions leading to the closure of a workplace."
"In our judgment, the domestic statutory framework does not require or permit a restrictive construction of Section 188 in circumstances where redundancies result from a jus imperii decision. The fact that there is express provision for the exemption of Crown employees from the scope of Section 188 illustrates that, but for such a provision, redundancy decisions relating to such employees would be subject to its provisions."
"There was no suggestion in [the precedents] that there could be different constructions of the statute considered in that case depending upon the status of the body or the quality of act subject to a rating system which was the subject of the litigation. In our judgment, there is no principle of law which would require or permit a different construction of a statute to be adopted in a case where it was to be applied to an act engaging jus imperii from that which was of general application. No authority was brought to our attention which suggested otherwise."
"In U.K. Coal Mining, [2008] I.C.R. 163, the EAT considered the nature and extent of the obligation imposed by Section 188(2)(a) to consult about ways of avoiding dismissals. The EAT . . . held at page 184 paragraph 87: 'But the obligation to consult over avoiding the proposed redundancies inevitably involves engaging with the reasons for the dismissals, and that in turn requires consultation over the reasons for the closure."
"Strictly, of course, it is the proposed dismissals that are the subject of consultation, and not the closure itself. Accordingly, if an employer planned a closure but believed that redundancies would nonetheless be avoided, there would be no need to consult over the closure decision itself, at least not pursuant to the obligations under the 1992 Act. In the context of a closure, that is likely to be a very exceptional case. Where closure and dismissals are inextricably interlinked, the duty to consult over the reasons arises.'"
"[Defendant] did not suggest that U.K. Coal was wrongly decided although [Defendant] sought to distinguish it on the basis that it applies to commercial decisions not to decisions which involve public policy. We do not agree that such a distinction can be drawn. There is no warrant in Section 188 for drawing such a distinction: the obligation to consult applies to both public sector and private sector employees. Redundancies in the public sector may well result from decisions taken for political and other non commercial reasons. These reasons are not excluded from the consultation requirements of Section 188."
"The fact that there was reference to consultation over economic decisions in the Information and Consultation of Employees Regulations 2004 in U.K. Coal as support for a conclusion that Section 188 imposes an obligation in certain circumstances to consult over the reason for a decision which will lead to redundancies does not restrict the application of the interpretation of Section 188 in that case to decisions taken for economic reasons.
"The effect of the judgment in U.K. Coal is that the statutory obligation to consult about ways of avoiding dismissals in circumstances of the closure of a workplace is to be construed as including the obligation to consult about the reasons for the closure. ..." [ 79-90]. In our judgment, the ET did not err in holding that the U.S., having submitted to the jurisdiction of the ET was in breach of its obligation to consult with employee representatives about the reasons for the closure of the Base." [ 91]
Citation: United States v. Nolan, 2009 WL 1321758 (EAT); (2009) 153 S.J.L.B. 32 (Emp. App. Trib. May 15, 2009).
