MRS S BAZ v 1) DR A AL-ABBAD 2) GOVERNMENT OF THE STATE OF KUWAIT [2000] UKEAT 1234_99_1907

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 1234_99_1907Case No Appeal No. EAT/1234/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS S BAZAPPELLANT1) DR A AL-ABBAD 2) GOVERNMENT OF THE STATE OF KUWAITRESPONDENT
Before
Mr Recorder BurkeDate 19 July 2000
[1]APPEARANCES For the Appellant MR P DOUGHTY (of Counsel) Appearing under the Employment Law Appeal Advice Scheme MR RECORDER BURKE QC : This is a Preliminary Hearing of Mrs Baz's appeal against a decision of the Employment Tribunal at London (North) chaired by Mr D.A. Pearl, promulgated on 27 August 1999 and supported by Extended Reasons. By that decision, on a preliminary issue as to jurisdiction, the Employment Tribunal concluded that there was no jurisdiction to entertain the Applicant's complaints against, first of all, Dr Al-Abbad and, secondly, the Government of the State of Kuwait, of unfair dismissal and sex discrimination. The jurisdiction issue arose because the First Respondent, Dr Al-Abbad and the Second Respondent, amended to the title of the Government of the State of Kuwait at the hearing, claimed that they had diplomatic immunity in respect of the Applicant's complaints.[2]It was conceded on behalf of Mrs Baz that Dr Al-Abbad had such immunity. The issue therefore before the Tribunal was whether the Government of the State of Kuwait had, in the circumstances of this case, such immunity.[3]The facts, so far as relevant to the preliminary issue, can be swiftly stated. Mrs Baz worked under a contract of employment for the Kuwait Health Office, part of the Government of the State of Kuwait at the premises of the Embassy of the State of Kuwait from February 1988 to December 1998, when she was dismissed. From 1991 her job title was that of Patient Co-ordinator. Her role required her to make medical appointments for Kuwaiti patients in the United Kingdom but whether when she made them the patients were here, or whether they were going to come here, we do not know and it does not matter.[4]Until a dispute about it blew up, it was also her job to make arrangements for interpreters to accompany such patients at medical appointments if required. She worked from 40 Devonshire Street in the West End of London, which is the address of the premises of the Kuwait Mission in the United Kingdom.[5]Section 1(1) of the State Immunity Act 1978 provides that "a State is immune from the jurisdiction of the Court in the United Kingdom except as provided elsewhere in that Act". A Court, by section 22 of that Act, includes an Employment Tribunal.[6]Section 4(1) of that Act provides that "A State is not immune in respect of 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" and, of course, Mrs Baz's contract, if it was not made in the United Kingdom as we think it probably was, was being wholly or partly performed in the United Kingdom. So she fell prima facie within section 4(1); and section 4 (6) provides that "proceedings relating to a contract of employment includes proceedings in respect of Statutory Rights" ie the proceedings which Mrs Baz had brought in the Employment Tribunal. So far, so good, but now comes the difficulty.[7]Section 16(1) of the Act provides that "this part of this Act does not affect any immunity or privilege conferred by the Diplomatic Privileges Act 1964 or the Consular Relations Act 1968" and that section 4, which takes employment disputes out of the immunity, does not apply to proceedings concerning the employment of members of the Mission within the meaning of the Convention scheduled to the Act of 1964, that Convention being the Vienna Convention on Diplomatic Relations which is an international Convention which has been in existence for a considerable period of time.[8]Section 16 of the 1978 Act thus has incorporated into itself Article 1 of the Convention and if one is looking for a definition, as one must in this case, of members of the Mission one finds that definition in Article 1. Members of the Mission are defined as the head of the Mission and the members of the staff of the Mission and the members of the staff of the Mission in subparagraph (c) of that Article are defined as the members of the Diplomatic Staff, of the administrative and technical staff and of the service staff of the Mission.

(f) says:

"(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."
All of these matters of law are set out in full in paragraph 6 of the Tribunal's Decision.[9]The argument below therefore centred on the words "The members of the Diplomatic staff of the administrative and technical staff and of the service staff of the Mission". Firstly, it was argued that the Applicant, Mrs Baz, was not a member of the administrative staff. Nobody had suggested she was a member of the technical staff. At paragraph 8 (3) of its Decision, the Tribunal recorded its view of that issue in these terms:
"(3) It is clear on the evidence that the Applicant was engaged in the making of appointments with hospitals and the like. This is, in our judgment, a central activity which is at the heart of the functions of the Kuwait Health Office. We consider that there can be no dispute that she was involved in administrative duties both before and after receipt of the letter dated 17 August 1998. Accordingly, we find that she was a member of the staff of the mission who was employed in the administrative service of the mission. …"
[10]Mrs Baz would like to challenge that conclusion as perverse, but the problem for her with that argument is that there is an express finding of fact based on evidence and we do not see how it could possibly be said that no reasonable Tribunal could conclude that the duties which she was undertaking were administrative duties. Indeed, had they concluded otherwise we might well have thought that the opposite conclusion was perverse but we need not say anything more about that. We are quite satisfied that there is no arguable ground of appeal so far as that first point which is taken in this case is concerned.[11]The next point is one of construction of the vital words of the relevant Article of the Vienna Convention. It was argued below that the words "of the administrative and technical staff" should be read conjunctively, not disjunctively, so that any employee who was only an employee with administrative functions and had no technical functions, and any employee who had technical functions and no administrative functions did not fall within the words of the Convention and, therefore, was not taken by the Convention out of section 4 of the Act and therefore there was no immunity in such person's case.[12]The Tribunal rejected this argument and concluded that, as a member of the administrative staff, Mrs Baz fell within Article 1 (a), 1(c) of the Convention, even though she had no technical functions.[13]Before us today Mr Doughty has put forward two new arguments. The first is that there is a conflict between the State Immunity Act which, of course, deprives someone in Mrs Baz's position of a hearing of her application on the merits, if the Tribunal is right in its construction of the relevant words of the Convention and the Equal Treatment Directive which by Article 6 requires member States to provide an effective remedy against discrimination. It is suggested that the State Immunity Act should be read subject to the objective of the Equal Treatment Directive and where any inconsistency arises the Equal Treatment Directive should prevail.[14]A similar new argument is presented in relation to the Convention (what I shall call the Human Rights Convention) the Convention for the Protection of Human Rights and Fundamental Freedoms. Article 6 of that Convention provides that the Appellant has a right to a fair trial. It is suggested therefore that there is a conflict between the State Immunity Act and the Convention. Mr Doughty has suggested that there may be some free-standing right which Mrs Baz has under the Convention to obtain a trial such as to cause us to reject as improperly conflicting with it the immunity within the State Immunity Act. We do not think that that is possible. Eventually, Mr Doughty, perhaps reluctantly and with some pressure from the bench, accepted that the purpose of the Equal Treatment Directive and the Convention in this case would be, if we accepted their relevance, by way of informing the construction exercise as to the vital words of the Convention which I have already described.[15]There are a number of problems with these arguments based on the Equal Treatment Directive and the Human Rights Convention. So far as the Equal Treatment Directive is concerned, a division of this Employment Appeal Tribunal on 18 January 1999, in a case called The Government Of the State of Kuwait v Ms N Fevzi (EAT/980/97) decided, among other things, that the State Immunity Act did not conflict with the Equal Treatment Directive. While that decision is not, of course, binding upon us as a decision of this Tribunal, it is highly persuasive and we see no basis for a successful argument that that decision was wrong.[16]Secondly, no argument based on the Equal Treatment Directive or the Convention was put forward in the Tribunal below. It is no longer, after the decision of the Court of Appeal in Jones v Governing Body of Burdett Coutts School [1999] ICR 38 , sufficient for somebody who seeks in this Tribunal to raise a new point to say only that no new evidence is required for the point to be argued. The Court of Appeal said that it is only in exceptional cases that a new point should be argued and Mr Doughty has not persuaded us (and one has to say, in fairness to him, he has not really sought to persuade us) that there are any exceptional circumstances in this case.[17]Thirdly, if and insofar as the usefulness of the Equal Treatment Directive and the Convention is to seek to persuade us to conclude that the Tribunal was wrong on its construction of the relevant words of the Convention, or at least was arguably wrong, and we have considered very carefully whether they should so persuade us, we have to look at those words and decide, having regard to the aims, purposes and terms of the Convention and the Directive whether it is possible to construe the words in the manner put forward by Mr Doughty and as put forward on behalf of Mrs Baz in the Tribunal originally.[18]Mr Doughty says that if one construes the words "of the administrative and technical staff" conjunctively then that would have the effect, on the one hand, of narrowing the number of persons subject to the immunity and, on the other hand, of restricting those persons to whom the immunity applies to senior staff. It would achieve the first of those objects and that, I suppose, could be said to be consistent with the aims and terms of the Convention and the Directive; but it would not have the effect of restricting the immunity to senior staff at all. There could be persons who had both administrative and technical functions, who were not senior staff, and there could be persons who had only administrative or only technical functions, who were senior staff.[19]Furthermore, it is important to note that the immunity also extends to service staff of the Mission; and Mr Doughty very fairly accepted that that would include the boiler maintenance men and the cleaners. Plainly, the relevant words are not restricted and are not intended to be restricted only to senior staff. It would, in our judgment, be strange in the extreme (and one is tempted to use a stronger word) if the immunity only applied to somebody who had both administrative and technical functions but did not apply to somebody who might be much more senior who had only administrative functions or only technical functions; and it is difficult, if not impossible, to see why on the construction put forward on behalf of Mrs Baz the service staff should be from top to bottom subject to the immunity.[20]In our judgment, for the reasons which I have expressed and for the reasons which the Tribunal set out which appear to us to be entirely correct, trying as hard as we could, if it was permissible to do so and if it was right to allow the new points to be heard which we do not think it would be, were this to go to a full hearing, it would still be impossible to construe the relevant words of the Convention incorporated into the 1978 Act in any other way than that adopted by the Tribunal and for those reasons this appeal must be dismissed.