Our employment law “case of the week” this week is Abusabib & Anor v Taddese UKEAT/0424/11/ZT, a case involving various allegations of discrimination and a contention of diplomatic immunity on the part of the Respondent.
The facts in Abusabib & Anor v Taddese
Ms Taddese (“the Claimant”) worked for the Dr Hassan Ali Abusabib (“the first Respondent”) for a period of time as a housemaid. The first Respondent was – for a period – First Secretary to the Sudanese Embassy, from 29th June 2005 to (although there was some confusion as to this) on 25 December 2007. The Claimant’s employment with the Respondent ended upon the termination of the first Respondent’s post and his leaving the United Kingdom (11 May 2008). The Claimant filed an Employment Tribunal claim in March 2010 – nearly two years after the date her employment terminated – contending that she had suffered sexual harassment, direct race discrimination and race-related harassment, and religion or belief-related harassment. Further, she contended that she had received no written particulars of her contract of employment and that unauthorised deductions from her wages. The Employment Tribunal dismissed her deduction of wages claim but allowed her discrimination claims to proceed on the basis that it was just and equitable to do so. Although there were complicating issues as to the correct address for service of the ET1 the Employment Tribunal issued judgment in default on 19 November 2010, awarding the Claimant just over £70,000 in total. The Respondent appealed against this decision on 14 December 2010 on the basis that the Respondent had diplomatic immunity under the Diplomatic and Privileges Immunities Act 1964. However, the Respondent did not apply for a review of the decision until August 2011. The application for review was therefore refused but the appeal proceeded.
The law relating to diplomatic immunity and UK employment law
The Diplomatic Privileges Act 1964 (“the 1964 Act”) provides by section 2 (1) that articles of the Vienna Convention on Diplomatic Relations signed in 1961 have the force of law in the UK. Under the 194 Act diplomatic agents enjoy immunity from the criminal, civil and administrative jurisdictions in which they are posted. Under s.39(2) of the 1964 Act this immunity continues after the termination of the posting if the relevant acts were in exercise of their functions as a member of the mission.
The Employment Appeal Tribunal’s decision in Abusabib & Anor v Taddese
The Respondent argued that he possessed immunity from civil suits under the 1964 Act. The Claimant contended that her employment was outside the exercise of the Respondent’s functions as a member of the mission and that he was therefore not protected under diplomatic immunity. The Employment Appeal Tribunal found that the Claimant’s employment as a housemaid at his domestic residence was at best peripheral to his functions as a diplomat of the Sudanese embassy and that he was therefore not protected from immunity.
Our expert employment lawyers’ thoughts on Abusabib & Anor v Taddese
This is an extremely interesting and quite unusual case, the facts of which aren’t usually seen in the Employment Tribunal. The “takeaway message” from this case is that in such circumstances it’s important to distinguish employment for the exercise of the functions of a member of a diplomatic mission (such as, for example, a PA) and employment which is peripheral to these purposes (such as – as in this instance – a position as a housemaid or a gardener).