United Arab Emirates v Abdelghafar
| Jurisdiction | England & Wales |
| Judgment Date | 10 July 1995 |
| Date | 10 July 1995 |
| Court | Court of Appeal (Civil Division) |
(Leggatt and Hutchison LJJ)
(Mummery J, President; Dawson and Grieves, Members)
State immunity — Jurisdictional immunity — Employment — Employment at foreign embassy — Employees bringing claim for unfair dismissal — Whether State immune from suit — Immunity in respect of employment of ‘members of a mission’— Scope of immunity — Definition of member of a mission — Administrative and technical staff — Locally employed persons working at embassy — Whether members of the administrative and technical staff — Distinction between State immunity and diplomatic immunity — Procedure — Application by State for leave to appeal out of time — Whether State litigant entitled to privileges — United Kingdom State Immunity Act, Sections 1, 4 and 16
Diplomatic relations — Diplomatic mission — Members of mission — Administrative and technical staff — Locally employed persons working at embassy — Whether entitled to diplomatic privileges and immunities — Whether members of the mission — Vienna Convention on Diplomatic Relations, 1961, Article 1 — United Kingdom Diplomatic Privileges Act 1964 and State Immunity Act 1978 — The law of England
Summary: The facts:—The applicants had been employed in the Medical Office of the London Embassy of the United Arab Emirates (‘UAE’). Neither was a citizen of the UAE and neither was entitled to diplomatic immunities or privileges. They claimed to have been unfairly dismissed and brought proceedings before the Industrial Tribunal, relying on Section 4 of the State Immunity Act 1978 to show that the UAE was not entitled to immunity.1 The UAE, which did not appear at the hearing, claimed in writing that the Tribunal lacked jurisdiction, because the UAE was entitled to immunity. The Industrial Tribunal rejected the claim of immunity, finding that the exception to immunity in respect of employment contracts in Section 4 of the State Immunity Act 1978 was applicable and that Section 16(1)(a) of the Act,2 which excluded the application of Section 4 in proceedings relating to the employment of ‘the members of a mission’ within the meaning of Article 1 of the Vienna Convention on Diplomatic Relations, 1961,3 did not apply, because the applicants were not members of the mission. The UAE applied for leave to appeal out of time against the decision of the Industrial Tribunal. The President of the Employment Appeal Tribunal granted the application for leave to appeal (104 ILR 647). The applicants appealed against this decision to the Court of Appeal.
Held (by the Court of Appeal):—The appeal by the applicants was dismissed. Although, in general, a foreign State was in no different position from a domestic litigant with regard to procedural matters, the President of the Employment Appeal Tribunal had been acting within the scope of his discretion in deciding, in the light of the unusual circumstances of the case and the right to claim State immunity, to allow the UAE to appeal out of time (pp. 628–32).
On the hearing before the Employment Appeal Tribunal of the UAE's appeal against the decision of the Industrial Tribunal, the UAE maintained that the applicants had been employed as members of the administrative and technical staff of the UAE Embassy and were therefore members of the mission, within the meaning of Article 1 of the Vienna Convention on Diplomatic Relations, 1961, with the result that the UAE was entitled to State immunity under Section 16(1)(a) of the State Immunity Act 1978.
Held (by the Employment Appeal Tribunal):—The appeal was allowed and the applicants' claims were dismissed. The UAE was entitled to State immunity by virtue of Sections 14 and 16(1) of the State Immunity Act 1978.
(1) A foreign State was entitled to immunity by virtue of Section 1 of the 1978 Act unless one of the exceptions to immunity in part I of the Act applied. In the present case, the only exception which might be applicable was that for contracts of employment in Section 4. If, however, the applicants had been employed as members of the UAE mission in the United Kingdom, the effect of Section 16(1)(a) would be to exclude the operation of Section 4 (pp. 632–5).
(2) In determining whether the applicants had been employed as members of the mission, for the purposes of Section 16(1)(a), the relevant question was whether they had been members of the administrative and technical staff of the UAE Embassy under Article 1 of the Vienna Convention on Diplomatic Relations, 1961, which had been incorporated into English law by the Diplomatic Privileges Act 1964. It was irrelevant that the applicants had not had diplomatic status and were not entitled to diplomatic immunity, since it was possible for someone to be a member of the administrative and technical staff of an embassy without having any entitlement to diplomatic immunity. On the evidence, the applicants had been members of the administrative and technical staff, with the result that the UAE was entitled to immunity from jurisdiction in respect of their claims (pp. 636–40).
The text of the decision of the Employment Appeal Tribunal commences at p. 632. The following is the text of the judgment of Hutchison EJ in the Court of Appeal, with which Legatt LJ agreed:
This is a renewed application by Mr Abdelghafar for leave to appeal against a decision of Mummery J, the President of the Employment Appeal Tribunal, which he gave on 29 July 1994 and which is now reported at [1995] ICR 65. The applicant is one of the respondents to an appeal by the United Arab Emirates to the Employment Appeal Tribunal whereby the United Arab Emirates challenge a decision by the Industrial Tribunal given on 29 June 1993 in which the Industrial Tribunal held that it had jurisdiction to entertain the claim of the applicant and another former employee, Mr Abbas, for wrongful dismissal. The issue of jurisdiction arose on a claim by the United Arab Emirates to immunity and reliance on the provisions of the State Immunity Act 1978.
On 29 July Mummery J had to determine an appeal by the United Arab Emirates against an earlier refusal by the Registrar to grant them leave to appeal out of time. The Employment Appeal Tribunal Rules allow six weeks, from the date when the Industrial Tribunal's decision is sent to the parties, for notice of appeal to be served: see rule 3(2). Rule 37 of the rules gives the Employment Appeal Tribunal a power expressed in general terms to extend time. A practice note of 17 February 1981 provided that, in deciding whether to grant such an
extension, particular attention would be paid to the guidance given in Marshall v. Harland & Woolf LtdICR [1972] ICR 97, [1972] ITR 132 in which the then President, Sir John Donaldson, emphasized the paramount importance of adhering to the time-limits and indicated that extensions would be granted only in rare and exceptional circumstances.After hearing argument from counsel on both sides, Mummery J allowed the appeal and granted the necessary extension of time. This is the decision sought to be appealed. It has to be said that the extension was a long one, 52 days.
I turn to see how the matter is put in the notice of appeal. It is said that, having held that it was incumbent on the applicant...
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