Al-Kadhimi & Ors v Saudi Arabia

Section 16(1)(a) of the State Immunity Act 1978 creates a jurisdictional bar to employment proceedings concerning members of a diplomatic mission where it applies. The expression members of a mission includes administrative and technical staff through the statutory reference to the Vienna Convention. Estoppel cannot enlarge an Employment Tribunal’s powers or circumvent the statutory bar, although a statute is not invariably an absolute obstacle to estoppel. An individual cannot invoke the Optional Protocol’s compulsory jurisdiction or the International Court of Justice’s Statute to require authoritative interpretation of the Convention. Only States may be parties before that court. Misleading representations may create a grievance, but they do not alter the statutory result.

An Egyptian national employed as an interpreter in the Military Attaché’s Department of Saudi Arabia’s London embassy brought an unfair dismissal complaint after declining less favourable contractual terms. The Central London Employment Tribunal held that the complaints necessarily failed because section 16 of the State Immunity Act 1978 disapplied section 4. The Employment Appeal Tribunal dismissed the appeal on estoppel, while adjourning the personal-injury compensation issue pending higher-court developments. The applicant sought permission to appeal, arguing that section 16 could be authoritatively interpreted only by the International Court of Justice and that misleading representations created an estoppel. The central issues were whether the statutory immunity applied to his staff category, whether the international-law provisions assisted him, and whether estoppel could overcome the statutory bar.

Permission to appeal refused. Lord Justice Simon Brown held that the applicant had no sustainable ground of appeal.

1. Section 16(1)(a) of the State Immunity Act 1978 provides that section 4 does not apply to proceedings concerning the employment of members of a mission. The phrase members of a mission is defined by reference to Article 1 of the Vienna Convention scheduled to the Diplomatic Privileges Act 1964. That definition includes administrative and technical staff. The applicant’s argument that it excluded him was therefore untenable.
2. The Optional Protocol concerning compulsory settlement of disputes could not assist an individual applicant. There was no relevant dispute between Saudi Arabia and Great Britain, and only States could bring proceedings before, or appear before, the International Court of Justice. Article 34(1) of the Court’s Statute confirmed that position.
3. The Employment Appeal Tribunal was right to reject estoppel. Where section 16(1) applies, the Tribunal is precluded from hearing the merits. Allowing estoppel to operate would add to its powers despite the statutory jurisdictional bar. Although Shah v Shah [2001] 4 All ER 138 showed that a statute is not necessarily an absolute bar to estoppel, the strict provisions of the State Immunity Act governing relations with foreign States could not be circumvented through a rule of evidence. The approach was consistent with Ahmed v Government of Saudi Arabia [1996] 2 All ER 248, [1996] ICR 25, and the proposition cited from Secretary of State for Employment v Globe Elastic Thread Co Ltd [1979] ICR 706.
4. The misleading letters sent to the employees did not alter the statutory result. The application for permission to appeal was refused.

• Court of Appeal (Civil Division) On 19 November 2003, refused permission to appeal from the Employment Appeal Tribunal.
• Employment Appeal Tribunal Heard the appeal on 8 July 2003 and ordered on 11 July 2003 that the estoppel grounds were dismissed. The issue of compensation for personal injuries consequential upon unfair dismissal was adjourned generally.
• Central London Employment Tribunal Following a preliminary hearing on 10 and 11 October 2001 and a chambers meeting on 12 October 2001, held that the complaints necessarily failed because section 16 of the State Immunity Act 1978 disapplied section 4.