Abusabib and Another v Taddese
| Jurisdiction | UK Non-devolved |
| Judge | Langstaff J,Mallender,Tatlow |
| Judgment Date | 20 December 2012 |
| Date | 20 December 2012 |
| Court | Employment Appeal Tribunal |
England, Employment Appeal Tribunal.
(Langstaff J, President; Mallender and Tatlow, Members)
Diplomatic relations — Privileges and immunities — Scope — Vienna Convention on Diplomatic Relations, 1961 — Article 39(2) — Former diplomat — Residual diplomatic immunity — Immunity continuing to subsist in respect of acts performed in exercise of functions as member of mission — Claims of domestic servant — Whether act of employing domestic servant in exercise of functions of mission — Whether acts of discrimination being carried out in exercise of functions of mission — Whether diplomatic immunity applicable
Jurisdiction — Immunity — Diplomatic immunity — Vienna Convention on Diplomatic Relations, 1961 — Article 39(2) — Former diplomat — Residual diplomatic immunity — Claims of domestic servant — Whether act of employing domestic servant in exercise of functions of mission — Whether acts of discrimination being carried out in exercise of functions of mission — Whether English courts having jurisdiction
Treaties — Interpretation — Vienna Convention on Diplomatic Relations, 1961 — Article 39(2) — Former diplomat — Residual diplomatic immunity — Extent of immunity — Article 3 of Vienna Convention identifying functions — Whether act of employing domestic servant in exercise of functions of mission — Whether acts of discrimination being carried out in exercise of functions of mission — Whether diplomatic immunity applicable
Relationship of international law and municipal law — Treaties — Vienna Convention on Diplomatic Relations, 1961 — Article 39(2) — Diplomatic Privileges Act 1964 — Article 39(2) of Vienna Convention set out in Schedule 1 of Act — Section 2(1) of Act providing that articles in Schedule 1 of Act having force of law in United Kingdom — Whether Article 39(2) applicable — Whether former diplomat enjoying residual immunity with respect to claims of domestic servant — The law of England
Summary:2The facts:—The claimant, a domestic servant, brought a claim against her former employers, a diplomat at the Sudanese embassy in London and his wife, nearly two years after her employment had ceased. She alleged that she had been mistreated while in their employ, suffering discrimination and harassment on grounds of her race, religion and sex.
The claimant was awarded compensation for acts of discrimination by the Employment Tribunal, which considered this equitable despite the time lapse. The respondent employers appealed. They claimed diplomatic immunity, asserting that the Tribunal lacked jurisdiction to entertain the claim by virtue of Section 2 of the Diplomatic Privileges Act 1964 and its Schedule 1, which incorporated, inter alia, Articles 31, 37 and 39 of the Vienna Convention on Diplomatic Relations, 1961 (“the Vienna Convention”).3
Held:—The appeal was dismissed.
(1) The respondent employers both had diplomatic immunity while the first respondent was in post since immunity also extended to family members who were part of the diplomatic agent's household under Article 37 of the Vienna Convention. Upon leaving post, a diplomat's immunity subsisted, under Article 39 of the Vienna Convention, until he or she left the country; a spouse's immunity did not (paras. 13–16).
(2) The Vienna Convention drew a clear distinction between functions performed as a member of the mission, and other functions performed by the individual diplomat while present in the receiving State. Since immunity was no longer necessary to respect the diplomatic purpose of the mission once the diplomat had retired from that post, continuing only as residual protection, it should not be construed more widely than the words required. A function had to be closely related to those so identified in Article 3 of the Vienna Convention. There was little scope for the act of employing a domestic servant to be part of the function of the diplomat in his mission (para. 29).
(3) The employment by a diplomat of another person to provide personal service to him whilst engaged in his mission might attract protection as being a function of a mission since some ancillary matters could be included. There was a spectrum. However, employing a domestic worker who performed no task outside the diplomat's home had such little connection with the functions of the mission that the act of employing such a person was unlikely to be one performed in the exercise of those functions. The discriminatory acts complained of could not have been carried out in the exercise of the functions of the mission. Residual immunity did not therefore extend to this case (paras. 30–6).
The following is the text of the judgment of the Tribunal, delivered by Langstaff J:
1. This appeal raises questions relating to diplomatic immunity in employment cases. The tale is a tangled one. The Claimant, of Sudanese origin according to her claim, but Ethiopian according to her witness statement, was employed by at least the male Respondent (though she said both) from September or October 2007 until May 2008. Nearly two years after she had ceased employment, on 9 March 2010, she brought a claim before the London Central Employment Tribunal. As it happened, the male Respondent was most probably a diplomat, as First Secretary to the Sudanese Embassy. When she brought her claim, she described the address of the Respondents as “currently unknown”. The claim raised serious allegations of direct discrimination and harassment under the Race Relations Act 1976, of harassment under the Employment Equality (Religion or Belief) Regulations 2003, and of harassment under the Sex Discrimination Act 1975. It also maintained that no written particulars of her contract of employment had been given to her in breach of section 38 of the Employment Act 2002 and that unauthorised deductions had been made from her wages. These allegations arose out of her mistreatment when she worked as a domestic servant for the Respondents, having been granted a visa at the embassy in Addis Ababa for that purpose.
2. The Claimant had plainly told those advising her that her male employer worked at the Sudanese Embassy. It seems that no enquiry was made at the Embassy to discover the current address of the Respondent. Instead, on 19 October 2010 the question whether the proceedings had been duly served on the Respondents was raised at a hearing at which, of course, the Respondents were not in attendance, before Regional Employment Judge Potter. Her order read, at paragraph 6:
There was discussion as to whether service of the proceedings on the Respondents had been achieved: the Claimant's advisor's impression was that the Respondents might have left the country to avoid criminal prosecution. The file did not indicate that the ET1 had been returned undelivered.
This contrasted with the position in relation to the Rule 9 Notice, which had been returned by Royal Mail—Addressee gone away. (A Rule 9 Notice is one informing a Respondent who has not presented a response to a claim that he shall not be entitled to take any part in the proceedings except for certain specified and limited purposes.) Then the Judge added this: “service would be deemed effective”.
3. On the basis, therefore, that the Respondents had been properly served, had not entered a Respondent's notice, and were therefore debarred from taking further part in the proceedings, save for purposes set out in Rule 9, the matter came before Employment Judge Snelson on 19 November 2010. He held that the Tribunal had no jurisdiction to consider the Claimant's complaint of unauthorised deductions from wages and accordingly dismissed that claim, but thought it just and equitable despite the lapse of time to consider the balance of the Claimant's claims. He found them proved. He ordered just over £70,000 in total to be paid by way of compensation. It is clear that at some time within the next month that decision, which could only have been sent to the address used for service previously, came to the attention of the Respondents, for on 14 December 2010 the Respondents appealed against the decision. The appeal raised the question of...
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