Aziz v Republic of Yemen

Factual and Procedural Background

An appeal was made against a decision of the Employment Appeal Tribunal (EAT), presided over by Judge Mitting, dated 20 September 2004. The EAT allowed an appeal by the Defendant State ("the respondents") against a decision of an employment tribunal in London Central dated 8 January 2004. The employment tribunal had held that it had jurisdiction to consider the complaints of the Plaintiff, a long-term accounts assistant employed at the respondents' embassy in London, who claimed unfair dismissal following termination on 30 June 2003. The respondents initially resisted the claim and subsequently invoked state immunity under the State Immunity Act 1978 during the tribunal hearing on 19 December 2003. The employment tribunal rejected the immunity claim, but the EAT accepted it on appeal.

The respondents had served a notice of appearance and later applied to amend that notice to include allegations of misconduct and/or incapability against the Plaintiff. New solicitors were instructed by the respondents in early 2004, and a Notice of Appeal was filed. The EAT admitted fresh evidence from the Yemeni Ambassador, who stated he had not authorised any waiver of immunity or steps in the proceedings, which led the EAT to allow the appeal and set aside the employment tribunal's jurisdiction decision. The matter was remitted for further factual determination.

Legal Issues Presented

1. Whether the employment tribunal had jurisdiction to hear the Plaintiff's claim given the claim of state immunity by the Defendant State under the State Immunity Act 1978.
2. Whether the Defendant State had waived immunity by taking steps in the proceedings, specifically by serving a notice of appearance and instructing solicitors.
3. The scope and application of the deemed authority of the head of a State's diplomatic mission under Section 2(7) of the State Immunity Act 1978 in relation to submission to jurisdiction.
4. The admissibility and weight of fresh evidence regarding authority to waive immunity and whether the EAT should remit the factual question of waiver to the employment tribunal.

Arguments of the Parties

Appellant's Arguments

• The fresh evidence admitted by the EAT should not have been admitted or should have been critically analyzed rather than accepted at face value.
• The application to amend the notice of appearance and subsequent steps constituted further submission to the tribunal's jurisdiction under Section 2(3)(b) of the 1978 Act.
• The respondents must be deemed to have taken steps in the proceedings and thereby submitted to jurisdiction, given the involvement of solicitors and embassy staff.
• There was a factual dispute as to whether the respondents waived immunity that required resolution by a fact-finding tribunal.

Respondents' Arguments

• The appeal was on a point of law concerning jurisdiction and state immunity, which justified admission of fresh evidence.
• The respondents relied on Section 2(5) of the 1978 Act, claiming that the initial step taken (serving notice of appearance) was done in ignorance of facts entitling immunity and thus did not constitute submission.
• The steps taken by solicitors and embassy staff were not steps taken by the state because they lacked authority from the head of mission.
• The authority to submit on behalf of the state lies solely with the head of the state's diplomatic mission or authorized delegate, and the Ambassador had not authorized any waiver or steps in the proceedings.
• It was the duty of the EAT to correct the employment tribunal’s error in accepting jurisdiction by admitting fresh evidence.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the statutory framework of the State Immunity Act 1978, focusing on Sections 1 and 2, which establish general immunity from UK court jurisdiction for states unless immunity is waived or an exception applies. The court emphasized that submission to jurisdiction requires a step taken by the state or its authorized representatives. Section 2(7) deems the head of a state's diplomatic mission to have authority to submit to jurisdiction on behalf of the state, including the authority to delegate.

The court analyzed the facts, including the employment tribunal proceedings, the notice of appearance served by solicitors instructed by embassy staff, and the evidence from the Ambassador denying authorization for waiver or steps in the proceedings. It found that the issue of whether the state had waived immunity turned on whether the solicitors and embassy officials acted with the authority of the head of mission.

The court recognized the importance of scrutinizing evidence on waiver and authority, citing established precedents that unauthorized acts by officials or solicitors do not constitute submission to jurisdiction. It held that the EAT was correct to admit fresh evidence and to consider whether immunity had been waived, but erred in concluding immunity applied as a matter of law without remitting the factual question to the employment tribunal.

The court rejected the doctrine of ostensible authority or estoppel as applicable to waiver of immunity, affirming that waiver must be intentional, authorized, and with full knowledge of rights by a person empowered by the state. The court also noted the duty under the 1978 Act to give effect to immunity even if the state does not appear.

Accordingly, the court concluded that the case should be remitted to the employment tribunal for a fact-finding hearing on whether the steps taken in the proceedings were authorized by the head of mission or his delegate, thus constituting a waiver of immunity and submission to jurisdiction.

Holding and Implications

The appeal is allowed. The decision of the Employment Appeal Tribunal is set aside insofar as it found as a matter of law that immunity applied without further factual inquiry. The matter is remitted to an employment tribunal to determine, on the basis of evidence, whether the Defendant State waived immunity by taking or authorizing steps in the proceedings.

The direct effect of this decision is to require a fact-finding hearing on the issue of waiver of state immunity before jurisdiction can be conclusively determined. No new precedent altering the law of state immunity is established; rather, the court clarifies procedural and evidential standards for determining waiver under the State Immunity Act 1978.