The Success of which we cannot speak

Barristers from Bretton Woods Law last week won yet another international employment law case within the European Bank for Reconstruction and Development’s (“EBRD” or “Bank’s”) internal justice system.  In fact, this is the third straight win in a row of late at the EBRD for BWL, but, regrettably, we are prevented from telling you about two of the three cases because the Bank intentionally applies a cloak of secrecy to the ministrations and jurisprudence emanating from its Grievance Committee.  One of the three cases was, however, a judgement of the EBRD’s Administrative Tribunal (“EBRDAT”) in respect of the jurisdiction of the Grievance Committee to hear a particular matter.  This judgement was thankfully published on the Tribunal’s webpage and it makes for interesting reading for a variety of reasons, not least of which is the implicit criticism of the Bank’s behaviour [read].

The EBRD, which is headquartered in London, is an international organisation that enjoys limited immunity from legal suit within the United Kingdom.  But the EBRD’s immunity is sufficient to cover employment disputes and, as a result, disgruntled EBRD employees are generally unable to seek recourse or protection from English employment tribunals.  EBRD employees have in general no other option than to rely upon the substitute internal system of justice created by and imposed upon them by the Bank for the resolution of their employment related grievances.

The Grievance Committee is the EBRD’s court of first instance and therefore the fact-finding body within its internal justice system, with an appeal lying thereafter to the EBRDAT.  The Chair of the Grievance Committee is an external lawyer, who is assisted in his or her deliberations by two staff members sitting in the capacity of Assessors.  The EBRD’s internal law only permits the Grievance Committee to make a recommendation on the outcome of an employment dispute to its President, Sir Suma Chakrabarti, and it then falls to Sir Suma to decide whether to accept or reject the Committee’s findings.  Sir Suma is the decision maker at first instance and this is so regardless of whether the employee is seeking to contest the lawfulness of his decisions.  In contrast, the EBRDAT is permitted by the Bank to pass judgement on disputes and its judgements are both binding and published on line. However, the recommendations of the Grievance Committee are not published nor are Sir Suma’s decisions thereon, which is truly astonishing given the fact that the Bank, as an international organisation, is a product of and is subject to customary international law, including inter alia article 6 of the European Convention on Human Rights (“ECHR”)

Article 6 of the ECHR stipulates that “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law” in the determination of their “civil rights and obligations.”  What is more, article 6 provides that not only should any hearing be in held in public, but that “judgement shall be pronounced publically.”  The EBRD falls down on both these points, for its Grievance Procedures (2011), which is the internal law that establishes and guides the Grievance Committee, exclude from the hearing or trial of the facts at first instance everyone other than the parties, including union representatives, and treats the proceedings of the Committee as confidential, including any report of the Grievance Committee to Sir Suma and any subsequent decision taken by him.  What makes matters worse is that the EBRD floats the threat of disciplinary action against any employee who openly talks about or otherwise discloses details of his or her case, both within the Bank and outside of it.

What this means in practice is that the EBRD is able to hide from the public at large and, more importantly, its serving employees the outcomes of cases that it has lost at first instance and any criticism levied against it by the members of the Committee, including the external and independent judge.  This lack of transparency self-evidently defeats the aims of justice, as it conceals judicial work that would assist immeasurably other disgruntled employees and their lawyers, stifles the making of informed complaints and, significantly, prevents the Bank’s Board of Directors from shining the spotlight of accountability on those who need to be illuminated.

Blanket confidentiality at first instance is an all too common practice within the internal justice systems of international organisations and BWL lawyers take the view that such confidentiality has no place in an internal system that acts as a substitute for national courts and tribunals.  It is abused by international organisations, it is abhorrent and it should be stopped.  If international organisations fear exposure of their behaviour, then the simple and, in truth, only answer is to take steps to improve.  However, until organisations such as the EBRD comply with their obligations under prevalent and applicable human right laws, we are unable to discuss in any detail how our clients, with our assistance, have prevailed and often in circumstances that have attracted judicial criticism of their employers.