United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR A McCOLLOUGH (of Counsel) Messrs Travers Smith Braithwaite Solicitors 10 Snow Hill London EC1A 2AL
For the Respondent	MR J N GALBRAITH-MARTEN (of Counsel) Messrs Hodge Jones & Allen Solicitors Twyman House 31-39 Camden Road London NW1 9LR


 


JUDGE PETER CLARK:

1. The applicant, Mr Nasser, was employed by the Government of the Kingdom of Saudi Arabia as an interpreter/driver at their Embassy at Holland Park, London. He worked for the office of the military attaché. That employment was continuous from July 1991 until his dismissal effective on 24th April 1998. Following dismissal he presented a complaint of unfair dismissal to the London (North) Employment Tribunal on 15th June 1998. The respondent did not enter a Notice of Appearance, relying on state immunity.
2. The matter came before an Employment Tribunal chaired by Mr C B Robson on 3rd March 1999. The tribunal considered the question of immunity from suit. They found, in a decision promulgated with extended reasons on 2nd March 1999, that the respondent was not immune from suit and proceeded to find that the applicant was unfairly dismissed and awarded him compensation totalling £13,980. Against that decision the respondent now appeals.

State immunity

3. The statutory position is correctly set out in the Employment Tribunal's decision. It is common ground that the question for the tribunal was whether or not the applicant was a member of the "administrative and technical staff" of the Saudi Arabian mission within Article 1(f) of the Vienna Convention, set out in Schedule 1 to the Diplomatic Privileges Act 1964 for the purposes of s.16 of the State Immunity Act 1978.

Employment Tribunal decision

4. In answering that question the tribunal first made the following relevant primary findings of fact. The applicant was employed as an interpreter/driver. His duties were set out at paragraph 3(3) of the tribunal's reasons thus:

"During his employment his duties were as follows. At the start of his day's work he would go to the office of the Attaché and a secretary would give him a list of things to do that day. They were mostly to do with meeting people off aeroplanes and taking them to hospitals or hotels, showing them where they could go shopping and helping them generally. Although told when appointed that his hours would be from 9 am to 3 pm, he normally worked longer hours and on seven days a week throughout his employment."

We infer that the interpreting part of his job involved translating from English into Arabic and vice-versa for the benefit of his passengers.

5. On those facts the tribunal expressed their conclusions at paragraph 11 in this way:

"It is apparent that the Applicant was not a member of the diplomatic staff and the questions which have to be asked in this case are whether he was a member of either the administrative and technical staff or of the service staff. We have given careful consideration to both and –

(a) with regard to the former, consider that the nature of the duties which he performed did not make him a member of the administrative and technical staff; and

(b) that the nature of his duties equally did not make him a member of the service staff.

It follows therefore that the exemption provided in section 16 of the Act of 1978 is not applicable in this case."

The Appeal

6. At a late stage, during his reply, Mr McCollough sought permission to amend the Notice of Appeal to add a contention that the tribunal have given no or no adequate reasons for their conclusion expressed at paragraph 11 of the reasons. That application was opposed by Mr Galbraith-Marten, although he accepted that he was able to deal with the point today. We bear in mind this court's obligation to give effect to the principle of state immunity. See s.1(2) of the 1978 State Immunity Act. We also note the observations of Mummery J in United Arab Emirates v Abdelghafar [1995] ICR 65, 73F-74B and Egypt v Gamal-Eldin [1996] ICR 13, 20B. In these circumstances we shall allow the amendment.
7. It is an unfortunate feature that before the Employment Tribunal the solicitor appearing for the applicant, Mr Piggott, although he referred the tribunal to the case of Ahmed v Government of the Kingdom of Saudi Arabia [1996] ICR 25, did not refer to the case of Gamal-Eldin which precedes Ahmed in the ICR reports.
8. In Gamal-Eldin an Employment Tribunal held that it had jurisdiction to consider the applicants complaints of unfair dismissal because the embassy's medical office, to which the applicants were attached, were engaged in commercial activities for the purposes of s.4 of the 1978 State Immunity Act, and because the respondent had taken a step in the proceedings. Those findings were overturned on appeal by the EAT, who went on to find that the applicants, who were employed as drivers, formed part of the administrative and technical staff of the mission (page 23E). Accordingly the respondent was entitled to immunity from suit. The complaints were dismissed.
9. It is interesting to note the Industrial Tribunal's findings of fact as to the applicants' duties in Gamal-Eldin set out at page 17E of the report:

"The applicants collected these patients from the airports and drove them either to hospitals where they were to receive their treatment or otherwise to hotels where they would await admission into hospital. They also translated for the patients at the hospitals."

In our judgment there is no factual distinction between the present case and that of Gamal-Eldin.

10. Dealing with the grounds of appeal we have concluded that the tribunal has given no reasons to explain why they concluded that the applicant was not a member of the administrative and technical staff on the facts as found. See Meek v City of Birmingham District Council [1987] IRLR 250. That, in our judgment, is an error of law.
11. We have considered whether it is necessary in these circumstances to remit the case to the same or a different Employment Tribunal for further consideration, or whether we can affirm or reverse the decision.
12. In our view, the latter course is appropriate. Like the EAT in Gamal-Eldin we think that it is abundantly clear that the technical and administrative staff of the mission includes a driver, employed to transport Saudi nationals arriving by air to hospitals, hotels or shops and to act as their translator. Indeed, we would go further and say that the opposite conclusion is legally perverse on those facts.
13. In these circumstances we shall allow this appeal and hold that the respondent has immunity from suit. It follows that the applicant's complaint must be dismissed.