Al-Kadhimi & Ors v Saudi Arabia

J U D G M E N T

1. LORD JUSTICE SIMON BROWN: The applicant is an Egyptian national who has lived in this country since July 1988. In July 1989 he became employed by the Government of the Kingdom of Saudi Arabia, the respondents to this application, as an interpreter in the Military Attache's Department at the respondent's embassy in London. On 4th March 1991 he signed a contract of employment. He was dismissed with effect from 4th March 1999 and two days before that, on 2nd March, he presented an originating application to the Employment Tribunal. In common with a number of others employed in the respondent's embassy he claimed constructive unfair dismissal because of their refusal to sign new contracts which the respondents had sought to impose on them in 1998, under which they would have had to bear the obligation to pay income tax and national insurance, terms less favourable than under their 1991 contracts.

2. The complaints of Mr Hassan and nine others were the subject of a preliminary hearing before the Central London Employment Tribunal which sat on 10th and 11th October 2001, followed by a chambers meeting on 12th October, and which concluded that the complaints necessarily failed because of the effect of the State Immunity Act 1978. Section 16 of that Act disapplied section 4 of the Act, which would otherwise have provided that the respondents were not immune from proceedings under these particular contracts of employment.

3. The applicant and a number of others appealed against the Employment Tribunal's ruling to the EAT which, on 8th July 2003, heard the appeal and on 11th July ordered as follows:

"(1) that where the appellants' claims are based on whether compensation for personal injuries consequential upon an unfair dismissal can be claimed, that matter be adjourned generally, with liberty to apply should the higher courts reverse the judgment of the EAT in Dunnachie v Kingston upon Hull City Council EAT/0726/02 and ...

(2) that the appeal be otherwise dismissed, in accordance with the written judgment of this Tribunal."

4. The Tribunal further directed that any application for leave to appeal should be made direct to the Court of Appeal within 14 days of the sending of that judgment to the parties. This applicant was in fact a day late in complying with that direction and now therefore needs and requests an extension of time. Let me make plain at once, this is not his real difficulty and that extension I would readily give.

5. I turn then to the judgment of the EAT, which was presided over by His Honour Judge Prophet. Many of the complainants, I should note, had been represented before both the Employment Tribunal and the EAT by counsel, Mr Westgate, although others, including this applicant, had not been so represented but had adopted counsel's arguments and then advanced additional arguments of their own.

6. It is convenient at this stage to read into this judgment the determinative parts of the EAT's judgment, namely paragraphs 11 to 16 inclusive:

"11. And so we turn to the part of the appeal to which we have had to give most of our attention today. Put in a nutshell, Mr Westgate and the unrepresented appellants say that the ET was wrong in law to conclude that the Respondent was not estopped from asserting State Immunity. That raises the legal issue of whether the doctrine of estoppel can ever apply in such a situation. We have been presented with a sustained submission by Mr Westgate of Counsel in support of the proposition that it can and we have endeavoured to take account of all that he has said. If we do not record each and every part of his submission and the authorities to which he has referred, we trust that he will accept that we have not overlooked any essential part of it. Also one of the unrepresented appellants, Mrs Taja has submitted a note on the estoppel point which we have considered.

12. Mr Westgate has, on the face of it, to surmount an initial hurdle in advancing his proposition that estoppel could be drawn in aid. In the case of Ahmed v The Government of the Kingdom of Saudi Arabia [1996] ICR 25, where matters were very similar to our case, the issue of estoppel was mentioned by Peter Gibson LJ in the Court of Appeal. He said this (at page 33):

'The point on estoppel was not raised by the applicant and was not supported by her before the Employment Appeal Tribunal, nor before us, no doubt because it is clearly established that an industrial tribunal may not enlarge its jurisdiction on the basis of estoppel: see Secretary of State for Employment v Globe Elastic Thread Co Ltd [1979] ICR 706.'

13. It has to be accepted that that was essentially an observation only, since estoppel was never pleaded in that case. Now that it is, the question nevertheless remains - Was Peter Gibson LJ essentially correct in regarding Globe Elastic as preventing estoppel from operating in the particular circumstances? Mr Westgate, in an ingenious argument, says that estoppel would not in this particular situation enhance the jurisdiction of the ET. The way the State Immunity Act operates means that the jurisdiction of the ET to consider unfair dismissal, or indeed any other cause of action in employment law, remains the same. The Act is merely procedural, not jurisdictional.

14. Mr McCullough says that is wrong. We agree with Mr McCullough. The State Immunity Act may be somewhat odd when applied to employment matters, because in essence it first confers immunity (s.1), then restores it for employment contracts (s.4) and then reverses that (s.16(1)). However, the effect, where s.16(1) applies, is that the ET is precluded from hearing the case on its merits. That forms a jurisdictional bar to the powers of the Tribunal to hear the merits of the case. It follows that, contrary to Mr Westgate's submission, it would add to those powers if, notwithstanding the statutory bar, the ET could still accept jurisdiction to hear the merits of the case.

15. Mr Westgate, utilising in particular the judgment of the Court of Appeal in Shah v Shah [2001] 4 All ER 138 has satisfied us, and indeed Mr McCullough, that it is not necessarily an absolute bar to the operation of the doctrine of estoppel that there is a statute to construe. The matters to weigh up are as indicated by the Court of Appeal in that case. We can see that the reference to social responsibility might well be regarded as embracing employment matters. However, this is a situation where there are relations with States to consider, and it is not one in our view where the very strict provisions of the State Immunity Act can properly be circumvented through a rule of evidence.

16. We have decided unanimously therefore that this appeal on the grounds of the application of the doctrine of estoppel should be dismissed. It is, however, right that there can be no doubt that these former employees were grossly misled in 1991 by the circulation to them by the Military Attaché of the Embassy of the letter of 16 November 1990, which appears to indicate that the could, if necessary, pursue employment law rights to industrial (now employment) tribunals. It is therefore understandable that they will retain a strong sense of grievance which this judgment will do little to remove."

7. It is against that judgment and order that the applicant now seeks permission to appeal. His notice of appeal sets out three proposed grounds of appeal. I need not read them. They are to be found at page 3 of the bundle. They are expanded upon in a skeleton argument to be found at pages 9 and 10 of the bundle. They in turn are the subject of a further two-page written argument which was received by the court yesterday. Essentially what Mr Hassan seeks to contend is that the Employment Tribunal and the EAT were wrong to have interpreted and applied section 16 of the State Immunity Act as they did, because that was a matter that could only authoritatively be interpreted by the International Court of Justice.

8. Let me first set out the most directly relevant provisions. Section 16(1)(a) of the State Immunity Act provides that:

"section 4 above does not apply to proceedings concerning the employment of the members of a mission within the meaning of the Convention schedule to the said Act of 1964 [the Diplomatic Privileges Act 1964]."

9. The Convention scheduled to the 1964 Act is the Vienna Convention, which by Article 1 provides:

"For the purpose of the present Convention, the following expressions shall have the meanings hereunder assigned to them ...

(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 ...

(f) the 'members of the administrative staff 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..."

10. Mr Hassan's first argument is that the words in section 16(1)(a) of the 1978 Act "the members of a mission" do not in fact properly include members of the administrative and technical staff, of which of course he was one, because, for certain purposes under the Diplomatic Privileges Act 1964, only diplomatic personnel themselves and not subordinate members of the mission are encompassed. The argument is, I fear, a hopeless one. The meaning to be given to the phrase "members of a mission" in section 16(1)(a) is quite unambiguously provided for by reference to Article 1 of the Vienna Convention scheduled to the 1964 Act.

11. Next Mr Hassan seeks to rely on the Optional Protocol to the Vienna Convention, concerning the compulsory settlement of disputes, Article 1 of which provides:

"Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol."

12. That provision, however, cannot avail him. In the first place there is in fact no dispute arising out of the interpretation or application of the Convention. But secondly, and perhaps more importantly, the only parties to the Protocol and the only persons able to bring disputes before and appear before the ICJ are the States concerned, and there is certainly no dispute between Saudi Arabia and Great Britain as to the meaning of the Vienna Convention for relevant purposes.

13. Nor can Article 36 of the Statute of the International Court of Justice avail Mr Hassan. As already stated and as is provided for by Article 34(1) of that Statute, only States may be parties in cases before the court.

14. Finally, I understand Mr Hassan to dispute the EAT's conclusion on the important issue of estoppel. In this regard he wishes to rely also on a further document, not referred to in the EAT judgment, namely a further solicitors' letter of 5th February 1991, which, no less misleadingly than the earlier letter of 16th November 1990 which the EAT did refer to in paragraph 16 of their judgment, stated that in certain circumstances, although the contracts of employment in this case were stated to be subject to Saudi law, it was not possible to oust the jurisdiction of the English courts in respect of any employment in this country and that:

"In cases where a minimum is set by English law, the individual employee's right of action would arise in an English court or Tribunal."

15. In my judgment, however, this letter can unfortunately make no difference to the outcome of the estoppel argument which the EAT were, in my judgment, clearly right to reject for the reasons which it gave, in which regard it is important to stress this court's judgment in Ahmed v Government of Saudi Arabia [1996] 2 All ER 248, [1996] ICR 25.

16. Like the EAT (see paragraph 16 of their judgment above), I, too, have some sympathy with Mr Hassan here. I am in no doubt, however, that he has no sustainable ground on which to appeal against the EAT's determination, that no such appeal could possibly hope to succeed and that this application must accordingly be refused.

17. I shall direct that a copy of the judgment be sent at public expense to the parties.

ORDER: Application for permission to appeal refused.

(Order not part of approved judgment)

______________________________