Miss J O Tacha v F J M Holdridge and The Embassy of Costa Rica: 2210796/2023 Miss J O Tacha v F J M Holdridge and The Embassy of Costa Rica: 2210796/2023

EMPLOYMENT TRIBUNALS

Case No 2210796/2023

Between

Miss J O TachaClaimant

F J M Holdridge and The Embassy of Costa RicaRespondent

Before

Employment Judge Brown

In person for claimant

Not represented for respondent

Date 12 September 2025

JUDGMENT

[1]The First Respondent retains the residual immunity, in Art 39(2) Vienna Convention on Diplomatic Relations, against civil claims, in respect of the alleged unlawful acts in this claim.

[2]The claim against the individual First Respondent is struck out.

REASONS

[1]This Public Preliminary Hearing was listed to determine all issues relating to state and diplomatic immunity in the case.

[2]Unfortunately, the Second Respondent had not been sent Notice of the Hearing, so I could not determine the state immunity issues. 1 ph outcome jment and case mngmnt 1.5.14 version

[3]I decided to determine the diplomatic immunity issues in relation to the individual First Respondent, to make use of the hearing time. It was not in dispute that the First Respondent was no longer a diplomat, so the issue was whether he retained residual diplomatic immunity under Art 39(2) Vienna Convention on Diplomatic Relations. At a Preliminary Hearing on 24 March 2025 I had identified the diplomatic immunity issues, in relation to the First Respondent as: 3.1. Whether the acts complained of were performed by a person in the exercise of his functions as a member of the mission, so that immunity shall continue to subsist against that person, the First Respondent, as an individual; 3.2. And/or has that immunity been lost?

[4]I decided that it was fair to proceed with the hearing in the absence of the Second Respondent because I would only be determining the application of diplomatic immunity to him, personally. I would not be determining any other issue or any matter which affected the Second Respondent. The Second Respondent had been served with the proceedings, but had never made any contact with the Tribunal. The Case and this Hearing

[5]By a claim form presented on 27 June 2023 the Claimant brought complaints of age and sex discrimination and a complaint about holiday against Mr Masis Holdridge, the First Respondent, an individual Respondent.

[6]On 12 September 2023 and 11 October 2023 Mr Masis Holdridge contacted the Tribunal and asserted diplomatic immunity in relation to the claim by virtue of article 31(1) of the 1961 Vienna Convention on Diplomatic Relations (“the Convention”), as enacted into English law by s2(1) Diplomatic Privileges Act 1964.

[7]At a case management preliminary hearing on 12 October 2023 I joined the Embassy of Costa Rica as a Respondent to the claim because it appeared that it could be liable, as employer, for the actions of Mr Masis Holdridge in the claim. It was therefore an appropriate Respondent.

[8]The claim was served on the Embassy via the Foreign Commonwealth and Development Office on 19 July 2024. The Tribunal received confirmation of this on 4 September 2024.

[9]The Embassy of Costa Rica had 2 months and 28 days from service to present a Response to the claim.

[10]It did not present a Response.

[11]There had been a Private Preliminary Hearing on 24 March 2025. Neither Respondent had attended that hearing. Unfortunately the Tribunal had sent the Notice of Hearing to the Second Respondent Embassy at the FCDO, rather than at its postal address. The joining instructions for that hearing had also not been sent to the Embassy, because it had not provided any email address, not having responded to the claim.

[12]At that hearing the Claimant contended that the First Respondent was no longer a diplomat and had lost any diplomatic immunity he may have had. He, however, had written to the Tribunal, however, asserting that Vienna Convention of Diplomatic Relations, articles 31 and 39 applied. 2 ph outcome jment and case mngmnt 1.5.14 version

[13]It was therefore also necessary to consider whether the claim against him was barred on the grounds that the acts alleged him were done in the exercise of his functions as a member of the mission (Embassy) under Art 39(2).

Relevant Facts

[14]In her claim form, the Claimant said that she was employed as “Secretary Administrative” at the Second Respondent Embassy. She ticked the boxes claiming sex and age discrimination.

[15]In her details of claim she said, “Mr Masis has always underestimated me at work, shown disrespect to me in front of users, tried changing my holidays authorisation dates. … Mr MasisTrom day one has always been rude with me by throwing papers, speaking to me in a tone of—voice were he under estimates my job and myself as a female. I work for the Embassy of Costa Rica and Mr Masis is not my boss he is only the consul and counsellor. Nevertheless, he has tried changing my holiday days, spoken rudely in front of citizens, blaming me for things he has done at work. Tried sabotaging my work, doing this that prevents from doing my job correctly. Keeps saying that the job I do is carpentry as is not important and it's easy. Tries making me sees as a bad employee in front of my boss and other members in the Embassy. I've been an employee at the Embassy for the past 3 years and this issue has been reoccurring all the time.”

[16]On 7 September 2023 the Tribunal had received an email from the Protocol Directorate of the Foreign, Commonwealth and Development Office (FCDO), regarding this claim which had been received at the FCDO. The email said that, “… the Respondent in this case, Francisco José Masís Holdridge, is a diplomatic agent of the Embassy of Costa Rica, who is entitled to Privileges and Immunity under Article 31 of the Vienna Convention on Diplomatic Relations (VCDR, 1961). We are happy to provide the Tribunal judge a certificate to confirm MrHoldridge’s diplomatic status, if necessary. Please see relevant VCDR article below

[17]Article 31 1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:(a) A real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;

(b) An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;

(c) An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions. 2. A diplomatic agent is not obliged to give evidence as a witness. 3. No measures of execution may be taken in respect of a diplomatic agent except in the cases coming under subparagraphs (a), (b) and (c) of paragraph 1 of this article, and provided that the measures concerned can be taken without infringing the inviolability of his person or of his residence.

Law

[18]Article 39(2) VCDR provides: “When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist.”

[19]In Reyes v Al-Malki and another

[2017] UKSC 61

, the Supreme Court considered Article 39(2) in circumstances where the claimant alleged mistreatment, including trafficking, during her employment as a domestic servant at a diplomat’s residence. 3 ph outcome jment and case mngmnt 1.5.14 version

[20]Lord Sumption explained that what is done by an agent of a diplomatic mission in the course of his official functions is done on behalf of the state [17]: “By comparison, the acts which an agent of a diplomatic mission does in a personal or nonofficial capacity are not acts of the state which employs him. They are acts in respect of which any immunity conferred on him can be justified only on the practical ground that his exposure to civil or criminal proceedings in the receiving state, irrespective of the justice of the underlying allegation, is liable to impede the functions of the mission to which he is attached.”

[21]He explained at [20] : “Accordingly, the first question is what are a diplomatic agent’s official functions. The starting point is the functions of the mission to which he is attached. They are defined in

article 3 of the Convention

, and comprise all the classic representational and reporting functions of a diplomatic mission. It is, however, clear that the official functions of an individual diplomatic agent are not necessarily limited to participating in the activities defined by article 3. They must in the nature of things extend to a wide variety of incidental functions which are necessary for the performance of the general functions of the mission. But whether incidental or direct, a diplomatic agent’s official functions are those which he performs for or on behalf of the sending state. The test is whether the relevant activity was part of those functions. That is the basis on which the courts in both England and the United States have approached the residual immunity in article 39(2)….”.

[22]In her claim form, the Claimant said that the First Respondent was consul and counsellor at the Mission when he did the acts she complains of. As the Respondent has left the Mission, in order to have diplomatic immunity from the Claimant’s claims, those acts must attract the residual immunity in Article 39(2) VCDR.

[23]It is necessary to look at the nature of the acts performed by the First Respondent in order to assess whether they were undertaken “in the exercise of his functions as a member of the mission”.

[24]The Claimant contended that disparaging remarks about the Claimant were not part of the functions of the mission within the United Kingdom. She agreed, however, that everything the First Respondent did was during his employment at the Embassy.

[25]I decided that all the acts alleged against the individual Respondent were acts performed by him in the exercise of his functions as a member of the mission, so that immunity continues to subsist against the Claimant’s claims.

[26]All the acts took place during - and only in - the context of the Claimant’s employment at the Embassy, in which the First Respondent was a serving diplomat at the relevant times.

[27]There was no other context in which the alleged acts are said to have occurred. The Claimant was not employed personally by the First Respondent as a domestic servant in his household. The Claimant did not happen to encounter the Respondent outside the workplace, or in other circumstances unrelated to the Respondent’s work as a diplomat.

[28]I noted Lord Sumption’s statement that, “… the official functions of an individual diplomatic agent are not necessarily limited to participating in the activities defined by article 3. They must in the nature of things extend to a wide variety of incidental functions which are necessary for 4 ph outcome jment and case mngmnt 1.5.14 version the performance of the general functions of the mission. But whether incidental or direct, a diplomatic agent’s official functions are those which he performs for or on behalf of the sending state. The test is whether the relevant activity was part of those functions.”

[29]On the facts of all the acts alleged, the First Respondent spoke to the Claimant, gave her instructions relevant to her work, allocated and changed her duties and made decisions in respect of her work. The Claimant’s own employment was, at the very least, for the purpose of the performance of the general functions of the Embassy. When he interacted with her at work, gave her instructions, or made decisions in relation to her work, his acts were therefore in the course of his own functions, which were necessary for the performance of the general functions of the Embassy.

[30]The First Respondent was acting on behalf of the Mission in doing so, for or on behalf of the sending state. He was not acting for himself as a private employer, or in the course of some unrelated commercial activity.

[31]While the Claimant alleges that the First Respondent acted in a discriminatory and offensive way in doing these things, I did not accept that there was any rule of international law which indicated that a discriminatory way of exercising functions as a member of a mission negated the exercise of the function, or the operation of Art 39(2).

[32]The First Respondent therefore retains the residual immunity in Art 39(2) against civil claims in respect of the alleged unlawful acts.

[33]The claim against the individual First Respondent is struck out. Employment Judge Brown Date: 12 September 2025 18 September 2025 .................................................................................. .................................................................................. 5 ph outcome jment and case mngmnt 1.5.14 version