McLaren v Bahamas High Commission [1994] UKEAT 740_94_2410

EAT
McLaren v Bahamas High Commission
[1994] UKEAT 740_94_2410 · 1994-10-24
MR JUSTICE MUMMERY (PRESIDENT) : This is the preliminary hearing of an appeal by Mrs McLaren. She appeals against the decision of the Industrial Tribunal held at London North on 10 June this year. The reasons for the decision were sent to the parties on 13 June. The Tribunal unanimously decided that there was no jurisdiction to consider Mrs McLaren's complaint that the Respondents, The Commonwealth of the Bahamas, had unlawfully discriminated against her on racial grounds by dismissing her.The question for the Tribunal on this preliminary hearing is whether Mrs McLaren has an arguable point of law on her appeal against that decision. If there is an arguable point of law then the appeal will go to a full hearing. If there is no arguable point of law, no purpose is served by a full hearing and the appeal will be dismissed at this stage.In order to understand whether there is an arguable point in this case, it is necessary first to examine the background to the proceedings and at the decision of the Tribunal. The proceedings were started by the presentation of an Originating Application on 24 May 1993. Mrs McLaren complained that she had been discriminated against contrary to the Race Relations Act 1976 in that she was dismissed from her position as a receptionist at the Bahamas High Commission at 10 Chesterfield Street, London W1. She stated that she had been dismissed on 26 February 1993 from the position to which she had been appointed on 5 October 1992. Her complaint was that she was of black Caribbean origin, was summoned on 26 February to the High Commissioner's Office and informed that she was dismissed from that day. She alleged that the High Commissioner made two comments in dismissing her; first, that her work was not at fault (in fact it was good) and that she was probably the best receptionist they had ever had, and, secondly, the High Commissioner made the comment that the biggest injustice was the way that the then High Commissioner had hired her.A further enquiry was made by her husband on the telephone on 1 March 1993 in which he asked the High Commissioner to clarify why she was dismissed. Her husband was told it was because she could not answer Bahamian enquiries. To that she said she had never been asked to answer Bahamian enquiries; she had never been given an induction to her job. Her job was as a receptionist and that involved answering telephone calls and passing them on. She answered the queries she was asked and sought assistance to those she could not deal with. At no time was she made aware of any alleged unsatisfactory performance.Later her husband made representations to the Permanent Secretary to the Ministry of Foreign Affairs at Nassau in the Bahamas. He confirmed to Mr McLaren that he knew of some goings-on regarding her and that Bahamian policy was to recruit a Bahamian first and, if that was not possible, to seek to appoint elsewhere. From that Mrs McLaren concluded that she was dismissed for a Bahamian candidate to be appointed to her vacant post and that she had been discriminated against.I have set out those complaints in detail because, if the decision of the Tribunal is right, those complaints can never be investigated by a Tribunal. That is obviously a matter of serious concern.The attitude of the Bahamas High Commission was to claim immunity. Because of the claim to immunity the Industrial Tribunal held a preliminary hearing to decide whether it had jurisdiction. If the claim to State immunity was well-founded it would have no jurisdiction. The Tribunal, in its reasons, set out the nature of Mrs McLaren's complaint and referred to the relevant legislation. At the hearing Mrs McLaren was represented by Counsel, Mr Munasinghe. The Bahamas High Commission was not represented. It made written representations through its solicitors, Charles Russell. Those representations referred to the relevant legislation.The relevant legislation is contained in two Acts of Parliament, The State Immunity Act 1978 and The Diplomatic Immunities Act 1964 . Under the State Immunity Act 1978 it is provided in Section 1:
"A State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the provisions of Part 1 of the Act."
It is also provided:
"A court shall give effect to the immunity conferred even though the State does not appear in the proceedings in question."
There is no dispute that the Industrial Tribunal is a court for the purposes of the Act. There is no dispute that the Bahamas is a foreign state and that its High Commission is the commission of a foreign state.The next stage is to look at the provisions of the Act relating to the cases in which there are exceptions from immunity. Mr Munasinghe relied heavily on section 4 which provides an exception from immunity. The exception is in these terms:
"A State is not immune as respects proceedings relating to a contract of employment between the State and an individual where the contract was made in the United Kingdom or the work is to be wholly or partly performed there."
On this aspect of the case Mr Munasinghe said that this case fell within section 4. The position was that there was a contract of employment. He has produced as evidence of that a letter of 1 October 1992 which offered to Mrs McLaren the position of a receptionist. It sets out her salary, her hours of work, her holiday entitlement and provisions for a medical insurance plan and reminds her that, as to the payment of relevant taxes, she was to be responsible.That contract was made in the United Kingdom. It was for work to be wholly performed in the United Kingdom. Mrs McLaren was to work in the High Commission premises, Bahamas House at 10 Chesterfield Street.If the legislation had stopped at that point, there would be no question of the Tribunal declining jurisdiction. The 1978 Act does not stop at that point.

(a) which provides:

"section 4 does not apply to proceedings concerning the employment of the members of a mission within the meaning of the Convention scheduled to the Diplomatic Privileges Act 1964."
The position is that the Tribunal had to ask whether these proceedings started by Mrs McLaren concerned her employment as a "member of a mission". In order to answer that question the Tribunal had to look at the 1964 Diplomatic Privileges Act , schedule 1 which sets out articles of the Vienna Convention having the force of law in the United Kingdom. The Tribunal did look at this schedule and at the relevant provisions of it which defined the various expressions relating to the claim for immunity.In Article 1(b):
"(b) the "members of the mission" are the head of the mission and the members of the staff of the mission; (c) the "members of the staff of the mission" are the members of the diplomatic staff, of the administrative and technical staff and of the service staff of the mission;... (f) the "members of the administrative and technical staff" are the members of the staff of the mission employed in the administrative and technical service of the mission; (g) the "members of the service staff" are the members of the staff of the mission in the domestic service of the mission"
A person falling within any of those definitions cannot bring a case against the foreign State, because of the effect of section 16(1)(a) of the State Immunity Act . The immunity granted by section 1 applies and the exception from immunity in section 4 does not apply in those particular cases.In this case the Tribunal correctly looked at section 1, 4 and 16 and at Article 1 in Schedule 1 to the 1964 Act. Their conclusion was that, as a receptionist employed in the office of the High Commission in London, Mrs McLaren was a member of the administrative staff of the mission. The Tribunal rejected the submission made by Mr Munasinghe that the expression "members of the mission" only included those members whose name was submitted to the Foreign and Commonwealth Office as composing the Respondent's diplomatic staff. There is evidence in that Mrs McLaren's name does not appear on the list sent to the Foreign and Commonwealth Office. Of this submission the Tribunal said:"There is no mention of such an additional qualification in Article 1 of the Vienna Convention and we can find no justification for limiting the scope of the definition of the "members of the mission" as proposed by Mr Munasingha [sic]".The Tribunal then referred to the earlier decision of the Employment Appeal Tribunal in Sengupta v Republic of India [1983] ICR 221 as authority against the distinction which Mr Munasinghe was attempting to draw.What is wrong in law with the decision of the Tribunal? Mr Munasinghe's submission was that the decision of the Tribunal was perverse, because there had been no proper enquiry by the Industrial Tribunal as to whether what Mrs McLaren was doing in any way concerned the public functions of a foreign state. He submitted that, on the evidence, all she was doing was answering the telephone and relaying messages. She was not a member of the diplomatic staff. She was not on the list submitted to the Foreign and Commonwealth Office. Prima facie she was not therefore concerned with the performance of public duties of the State of the Bahamas. In those circumstances there was an error of law on the part of the Tribunal.We are unable to agree. It appears to us that, harsh though it may seem to Mrs McLaren, the Bahamas High Commission enjoys the immunity of a foreign state in relation to her employment and dismissal. That is the effect of the statutory provisions. Mr Munasinghe was attempting in his submissions to draw a distinction between different levels of employment in the mission, a distinction not supported by the wording of the legislation and directly contrary to the basis of the decision in Sengupta v Republic of India . In that case, also a case of state immunity, it was argued on behalf of Mr Sengupta, who enjoyed no diplomatic privileges and was employed in a clerical grade in the Indian High Commission in London, that there was no immunity in respect of a claim for unfair dismissal. It was argued on his behalf that a line should be drawn between different members of staff of the commission. The line was to be drawn which divides diplomatic staff from other staff. It was submitted on his behalf that there was no reason to exclude claims by clerical staff, such as Mr Sengupta, who had no confidential information and was not in any way a representative of the foreign state.The Employment Appeal Tribunal, presided over by Browne-Wilkinson J, refused to accept the submission that a line should be drawn in that way. He said:
"But we do not consider that there can be jurisdiction over claims by those engaged in carrying out the work of the mission in however humble a role. The factors which have led us to reach our conclusion on the general principle [and he refers back to page 228 of the decision] apply to all such employees. They are engaged in carrying out the public functions of the foreign state: an investigation of their claim might well require an investigation by the tribunal into the conduct of the diplomatic mission. Therefore, in our judgment, at common law a state is immune from claims for unfair dismissal brought by employees at a diplomatic mission who are engaged in carrying on the work of that mission."
He referred to the fact that that decision was fortified by other decisions on the point in other jurisdictions and mentions specifically (end of page 229) the decision of a Labour Court in Hanover Conrades v United Kingdom where a claim by the United Kingdom Government for immunity from a claim brought by a German national, who had been employed for over 30 years as a receptionist and non-confidential clerical clerk at the Hanover consulate, was upheld as covered by the immunity.In our view, the fundamental flaw in Mr Munasinghe's submission is that he seeks to draw a distinction between different kinds of employees at a foreign mission when no such distinction is drawn either in the relevant legislation or in the decision of Sengupta . In those circumstances we have reached the conclusion that, although our decision means that Mrs McLaren's case can proceed no further, the Industrial Tribunal were clearly right as a matter of law in holding that they had no jurisdiction to entertain the claim. There was a claim to state immunity by the Respondent well-founded in law.This appeal will be dismissed at this stage.