United Arab Emirates v Abdelghafar & Anor [1995] UKEAT 768_94_1007

EAT

United Arab Emirates v Abdelghafar & Anor

[1995] UKEAT 768_94_1007 · 1994-07-29

MR JUSTICE MUMMERY (PRESIDENT): This is an appeal by the United Arab Emirates against the decision of the Industrial Tribunal held at London (South) on 29 June 1993. The Tribunal heard a preliminary issue in proceedings for unfair dismissal brought by two Applicants, Mr Abdelghafar and Dr A K Abbas, against the United Arab Emirates. On the preliminary issue as to jurisdiction, the Tribunal unanimously decided that, by virtue of Section 4 of the State Immunity Act 1978 , the United Arab Emirates was not immune from proceedings in the United Kingdom. The Tribunal had jurisdiction to hear the complaints of both Applicants under the Employment Protection (Consolidation) Act 1978 , as amended. The full reasons for that decision were notified to the parties on 30 July 1993. The United Arab Emirates appealed against that decision by Notice of Appeal served on 2 November 1993.

The circumstances in which there was a first appeal hearing are set out in the judgment given on 29 July 1994. The judgment summarises the decision of the Industrial Tribunal and the procedural history of the proceedings and of the appeal. For reasons in that judgment, which need not be repeated, an order was made on 29 July allowing the appeal against the Registrar's order of the 7 February 1994, refusing an extension of time for appeal. By the same order the time for entering a Notice of Appeal was extended until 2 November 1993. The decision on the question of extension of time for appealing was itself appealed to a single judge of the Court of Appeal, Lord Justice Neill, who refused leave. The matter was further considered by two other Lord Justices of Appeal, Lord Justice Leggatt and Lord Justice Hutchison on 3 March 1995, when they refused the application for leave.

This is the hearing of the substantive appeal. The representation is as before. Mr Smouha represents the United Arab Emirates, Mr Snelson represents Mr Abdelghafar. Dr Abbas appears in person. The question of law on the appeal is whether state immunity can be claimed by the United Arab Emirates in respect of claims of unfair dismissal by the two Applicants, formerly employed in the medical department of the United Arab Emirates Embassy in London. The facts found by the Tribunal are stated in the earlier judgment. The crucial parts of the Tribunal decision are contained in paragraph 7. That paragraph is preceded by a reference to the employment of Mr Abedelghafar in the Embassy's medical department as Chief Accountant and Dr Abbas as medical interpreter. The Tribunal cited provisions in the State Immunity Act 1978 , Sections 1,2,4 and 16 . The Tribunal said that these were their findings of fact applicable to both Applicants:

"(a) Section 16 of the State Immunity Act 1978 has no application to either Applicant. Neither of them was employed as a member of the Respondent's mission nor were they employed in a Consular post. No diplomatic privileges or immunities attached to their jobs with the Respondent. Both of them are described as "local employee" in the relevant documents. (b) Neither of the Applicants was at any time a national of any of the member states of the Respondent - ie. of the United Arab Emirates. (c) Both Applicants were employed by the Respondent under a contract which was made in the UK. (d) Under their respective unwritten contracts of employment with the Respondent, both Applicants performed their work wholly or partly in the United Kingdom. (e) Section 4(2)(c) has no application to the contracts of employment between the Respondent and either Applicant."

In the following paragraphs the Tribunal stated their findings of fact in relation to each Applicant. The Tribunal's decision was that they had jurisdiction to hear both applications, because the exception from immunity in Section 4(2)(b) of the 1978 Act applied to the Tribunal applications. Mr Smouha argued that there is an error of law in the decision. His arguments started with a reference to the crucial sections of the State Immunity Act . He referred to Section 1 :

"(1) A State is immune from the jurisdiction of the Courts of the United Kingdom except as provided in the following provisions of this Part of this Act.

(2) A court shall give effect to the immunity conferred by this section even though the State does not appear in the proceedings in question."

He pointed out that the immunity from jurisdiction was general, subject to limited exceptions. It was an immunity from jurisdiction, not an immunity from liability. Section 4 deals specifically with contracts of employment.

"(1) 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 was wholly or partly performed there.

(2) Subject to subsections (3) and (4) below, this section does not apply if -(a) at the time when the proceedings are brought the individual is a national of the State concerned; or

(b) at the time when the contract was made the individual was neither a national of the United Kingdom nor habitually resident there; or

There is no question of (c) applying to this case. I refer to sub Section (3) , only to point out that reliance was not placed on this:

"3) Where the work is for an office, agency or establishment maintained by the State in the United Kingdom for commercial purposes, subsection (2)(a) and (b) above do not exclude the application of this section unless the individual was, at the time when the contract was made, habitually resident in that State."

Section 14 contains supplementary provisions:

"The immunities and privileges conferred by this part of this Act apply to any foreign or commonwealth state, other than the United Kingdom and references to a state include references to (a) the Sovereign or other Head of that State in his public capacity. (b) The government of that State and (c) any department of that government but not to any entity hereafter referred to as a separate entity, which is distinct from the executive organs of the government of the state and capable of suing or being sued."

The crucial section for the purposes of this appeal is Section 16 which deals with excluded matters. Sub section (1) , in its material parts provides:

"(1) This Part of this Act does not affect any immunity or privilege conferred by the Diplomatic Privileges Act 1964... (a) Section 4 above does not apply to proceedings concerning the employment of the members of a mission within the meaning of the convention scheduled to the said Act of 1964..."

To make sense of Section 16(1)(a) it is necessary to refer to the First Schedule of the Diplomatic Privileges Act 1964 Schedule 1 Article 1 . This schedule contains articles of the Vienna Convention having force of law in the United Kingdom. Article 1 contains definitions central to Mr Smouha's argument:

"(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. (d) The members of the Diplomatic Staff are the members of the Staff of the mission having diplomatic rank. (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."

The argument advanced by Mr Smouha is short, simple and, in our view, correct. He submits that Section 16 expressly states that Section 4 does not apply to proceedings concerning the employment of "the members of a mission", within the meaning of the 1961 Vienna Convention on Diplomatic Relations. The term "the members of the mission" is defined in Article 1 . The error of law on the part of the Tribunal was in not focusing on those definitions and in failing to apply them correctly to the facts of the case. The definitions are comprehensive of those who serve in a mission. The error of the Tribunal was that, although they cited Section 16 including the reference to the Convention Schedule to the Act of 1964 , they appear in paragraph 7(a) of the Reasons to have equated members of the mission with the Diplomatic staff who would have diplomatic privileges or immunities attaching to their jobs and to have argued from that that as neither Applicant had diplomatic privileges or immunities attaching to their job, they did not fall within the exclusion and could therefore invoke the jurisdiction of the Industrial Tribunal.

The Tribunal failed to address those definitions. The relevant question was whether the Applicants were employed by the Embassy in the mission as part of the administrative and technical staff. They were both employed in the medical department. That was part of the administrative and technical service of the Embassy. The consequence was that the Tribunal could not assume jurisdiction, any more than any other Court or Tribunal in the United Kingdom in relation to proceedings arising out of the contracts of employment. Mr Smouha emphasised the importance of the distinction between State immunity and Diplomatic immunity. This is a case where the claim is made against the State. That is a matter governed by the State Immunity Act , though, in order to make full sense of the Act, it is necessary to cross-refer to the First schedule to the Diplomatic Privileges Act .

The fact that the proceedings concern the employment of a person who is not himself entitled to diplomatic immunity is irrelevant. The two areas of immunity do not coincide. Just because the Applicants work for the Embassy is not a reason for conferring diplomatic status. It is obvious that their functions were not diplomatic in nature. But the fact that they could not claim diplomatic privilege is neither here nor there on the question whether the United Arab Emirates, as a State, is subject to the jurisdiction of the Industrial Tribunal in respect of a claim for unfair dismissal. The only authority cited in support of these submissions was the case of Sengupta v Republic of India

[1983] ICR221

a decision on the common law position, not on the 1978 Act . But there are passages in the judgment of the Employment Appeal Tribunal given by Mr Justice Browne-Wilkinson which support the Appellant's argument. At page 225 Mr Justice Browne-Wilkinson said:

"Before leaving the Act of 1978 we note a point that may be material on the other aspect of the case. In cases to which the Act applies (i.e. contracts of employment entered into after 1978) the exemption in section 4 from the blanket immunity conferred by section 1 has no application to employment at a diplomatic mission, i.e. the Act confers on states absolute immunity from proceedings relating to employment at an embassy or High Commission."...

The judgment cites Section 16(1)(a) and Article 1 of the scheduled convention in the 1964 Act . At 225G it continues:

"Therefore, section 16(1)(a) operates to exclude jurisdiction over claims relating to the employment not only of diplomatic staff but also of lower grade, administrative, technical and domestic staff irrespective of their nationality. Accordingly, in relation to contracts of employment entered into by a state, the Act draws a distinction between employment at a diplomatic mission (in relation to which the state enjoys absolute immunity) and employment elsewhere (in relation to which the state is not immune in the circumstances set out in section 4 of the Act). This may be of some relevance in considering whether, apart from the Act, the Republic of India is immune from the applicant's claim."

A further passage on page 228 refers to the general considerations applicable to cases of state immunity:

"If we have asked ourselves the right questions, then in our judgment the necessary result must be that there is no jurisdiction to entertain the applicant's claim. It is true that any private individual can employ another, i.e. can enter into a contract of employment. Therefore in that sense the entry into a contract of employment is a private act. But when one looks to see what is involved int he performance of the applicant's contract, it is clear that the performance of the contract is part of the discharge by the foreign state of its sovereign functions in which the applicant himself, at however lowly a level, is under the terms of his contract of employment necessarily engaged. One of the classic forms of sovereign acts by a foreign state is the representation of that state in a receiving state. From the doctrine of sovereign immunity were derived the concepts that the embassy premises were part of the soil of the foreign sovereign state, and that diplomatic staff are personally immune from local jurisdiction. A contract to work at a diplomatic mission in the work of that mission is a contract to participate in the public acts of the foreign sovereign. The dismissal of the applicant was an act done in pursuance of that public function, i.e. the running of the mission. As a consequence, the fairness of any dismissal from such employment is very likely to involve an investigation by the industrial tribunal into the internal management of the diplomatic representation in the United Kingdom of the Republic of India, an investigation wholly inconsistent with the dignity of the foreign state and an interference with its sovereign functions."

There was no jurisdiction to entertain the claim for unfair dismissal, even though the position occupied by Mr Sengupta was, as described earlier in the judgment, is a low clerical grade.

Mr Smouha therefore submitted that there had been a plain mis-direction by the Tribunal on the law. Had their attention properly focused on the relevant statutory provisions, the result would have been to decline jurisdiction. There are two other points on which submissions were prepared by each side, but we do not find it necessary to reach a conclusion on them. First a question was raised whether the Tribunal had properly exercised jurisdiction to decide the preliminary point on jurisdiction because, it was alleged, there was a failure to note that the Embassy's representative had come off the record. The Tribunal continued to send Notices to him. The result was that proper notice of the hearing had not been given to the Embassy or its authorised representative. The hearing ought never to have taken place in their absence. The second point was whether the Tribunal's order of 18 October 1993 for the production of documents was correct.

It is accepted by both sides that, if the appeal on the main point of jurisdiction succeeds, then the order for the production of documents must fall with the proceedings. As we have decided that the appeal should be allowed on the main point, it is not necessary to consider the effect of non-notification of the Preliminary Hearing to the Embassy or its authorised representative.

We have given full consideration to the arguments on the main point advanced by Mr Snelson on behalf of Mr Abdelghafar and by Dr Abbas in person. We deal first with Mr Abdelghafar. The main point made by Mr Snelson was that there had been no mis-direction in law. The Tribunal referred to all the relevant provisions; as appears from paragraph 5,6 and 7 of the Decision. In particular, they referred to and set out the material parts of Section 16 on which Mr Smouha argues there was a mis-direction. The citation from Section 16 cross refers to the scheduled convention to the 1964 Act . There was no mis-direction in failing to cite the case of Sengupta . Sengupta was not decided on the 1978 Act . The remarks in it are obiter dicta. Therefore, says Mr Snelson, if there was no mis-direction in law, there is no ground for appealing. This Tribunal can only hear an appeal for an error of law. He argued, as his second point, that the conclusion of the Tribunal was a conclusion of fact from which there can be no appeal. There was a clear conclusion in paragraph 7(a) that neither Applicant was employed as a member of the mission of the United Arab Emirates. That is a question of fact. They heard evidence. They were entitled to come to that conclusion. That conclusion of fact is unimpeachable. For those reasons the appeal ought to be dismissed.

We are unable to accept those arguments. On the first point, the fact that the correct section has been cited, does not mean that the correct section has been correctly understood or correctly applied. Although Section 16(1)(a) is referred to, it cannot have been correctly interpreted or correctly applied to reach the result stated in paragraph 7(a). In our view, on the findings of fact about the employment of both Applicants, they were members of the mission within the definition in Article 1 of the schedule to the 1964 Act . They were employed by the Embassy; they were dismissed by them. They were part of the administrative and technical staff of that mission. They were working for any other employer. There has never been an attempt to argue that this case falls within the "commercial purposes" provisions of Section 4 .

The position is clear. They were members of the mission. There is immunity for the United Arab Emirates from the jurisdiction of an Industrial Tribunal for a claim of unfair dismissal. Mr Snelson's argument that these are findings of fact are not law is an incorrect analysis of the position. We accept Mr Smouha's proposition that it is a question of mixed fact and law. The question whether somebody is a member of a mission, must involve first, a correct interpretation and, secondly, a correct application to the facts of the definition in Article 1 . If there is a misinterpretation of the law, the result will contain a legal error open to correction on appeal.

Dr Abbas put the matter rather differently in his submission. An essential part of his argument was that, although he was employed in the medical department, he was entitled to bring a case for unfair dismissal. The essence of his argument was that he was a UK National, who enjoyed no immunities of diplomatic status. It was not correct for the United Arab Emirates to invoke an immunity against him on the grounds that he was a member of the mission. He referred to a number of other articles in the Vienna Convention, in particular Articles 31, 37 and 38(2) . Article 31 provides:

"A diplomatic agent shall enjoy immunity from the civil and administrative jurisdiction as well as the criminal jurisdiction of the receiving state, except in certain cases which are not applicable to this case."

He then referred to Article 37 which provides:

"Members of the administrative and technical staff of the mission together with members of their families forming part of their respective households, shall, if they are not nationals of or permanently resident in the receiving state, enjoy the privileges and amenities specified in Articles 29-35, except that the immunity from civil and administrative jurisdiction of the receiving states specified in paragraph 1 of Article 31 shall not extend to acts performed outside the course of their duties."

Finally, Article 38(2) provides:

"Other members of the staff of the mission and private servants who are nationals of or permanently resident in the receiving state, shall enjoy privileges and immunities only to the extent admitted by the receiving state."

Dr Abbas argued that, by virtue of those provisions and his status as a UK National, he was not entitled to diplomatic immunities. He had pointed to a letter written to him by the Foreign & Commonwealth Office, Protocol Department:

"Diplomatic agents who are nationals of or permanently resident in the receiving State enjoy a limited degree of diplomatic immunity in respect of official acts performed in the exercise of their functions. Other members of the staff of the mission who are nationals of or permanently resident in the receiving State do not enjoy privileges and immunities in the United Kingdom."

Dr Abbas submits that, as he is a British National, he has no privileges and immunities. The Tribunal should therefore exercise its jurisdiction in his case, whether he is regarded as a local employee or as a member of the staff of the mission.

The answer to that point has already been given by Mr Smouha in his general submission, which we accept. It is important to bear in mind the distinction between state immunity and diplomatic immunity. The two are not coincident. This is a case of state immunity. Dr Abbas is not entitled to diplomatic immunity. The question herein whether the United Arab Emirates are entitled to rely on state immunity in respect of a claim by him against them. The other point made by Dr Abbas is that the Sengupta case can be distinguished from the present case. Mr Sengupta was an Indian national employed in the Indian High Commission in London; and he had a contract that pre-dated the 1978 Act . It was therefore a decision not on the Act , but on the common-law position.

We agree that there are those differences between Dr Abbas' case and the Sengupta case, but they do not invalidate the powerful arguments in the Sengupta case for holding that the 1978 Act operates to confer immunity in circumstances such as these. For all those reasons we are satisfied that there was an error of law in this decision. That error of law is in the failure to focus on, interpret and correctly apply Section 16(1)(a) and Article 1 of the schedule to the 1964 Act . We decline to follow Mr Snelson's submission that if there is an error, it would be appropriate to remit to the Industrial Tribunal. We see no point in remitting it to the Industrial Tribunal. There are no further facts to be found. The relevant facts are in the Decision and in the documents on which the decision is based. In our view, the only possible result of correctly interpreting and applying these provisions to the facts is that there is no jurisdiction to entertain a claim by either Applicant. We allow the appeal. The result of allowing the appeal is that the claims are dismissed.