India did not appear at court to take a point on jurisdiction under the 1978 Act. The Court asked for the appointment of an amicus to assist it.
Held: The court has a duty under statute to give the effect to the immunity conferred, even though the state does not appear to claim it. As to the issue of state immunity: ‘If we have asked ourselves the right questions, then in our judgment the necessary result must be that there is no jurisdiction to entertain the applicant’s claim. It is true that any private individual can employ another, i.e. can enter into a contract of employment. Therefore in that sense the entry into a contract of employment is a private act. But when one looks to see what is involved int he performance of the applicant’s contract, it is clear that the performance of the contract is part of the discharge by the foreign state of its sovereign functions in which the applicant himself, at however lowly a level, is under the terms of his contract of employment necessarily engaged. One of the classic forms of sovereign acts by a foreign state is the representation of that state in a receiving state. From the doctrine of sovereign immunity were derived the concepts that the embassy premises were part of the soil of the foreign sovereign state, and that diplomatic staff are personally immune from local jurisdiction. A contract to work at a diplomatic mission in the work of that mission is a contract to participate in the public acts of the foreign sovereign. The dismissal of the applicant was an act done in pursuance of that public function, i.e. the running of the mission. As a consequence, the fairness of any dismissal from such employment is very likely to involve an investigation by the industrial tribunal into the internal management of the diplomatic representation in the United Kingdom of the Republic of India, an investigation wholly inconsistent with the dignity of the foreign state and an interference with its sovereign functions.’ The tribunal could not hear the claim even though the employment had been at a low grade.
Judges:
Justice Browne-Wilkinson
Citations:
[1983] ICR 221
Statutes:
Jurisdiction:
England and Wales
Cited by:
Cited – United Arab Emirates v Abdelghafar and others EAT 29-Jul-1994
At a preliminary hearing, when the respondent failed to appear, the tribunal decided that it had jurisdiction to hear a case brought by the claimant against the respondent despite the 1978 Act. The respondent sought to appeal out of time.
Cited – United Arab Emirates v Abdelghafar and Another EAT 10-Jul-1995
The appellant challenged a decision by the tribunal made in its absence that the tribunal had jurisdiction to hear against it a claim for unfair dismissal.
Held: The tribunal had erred. Though Sengupta had been decided under common law, it . .
Cited – The United States of America v Nolan SC 21-Oct-2015
Mrs Nolan had been employed at a US airbase. When it closed, and she was made redundant, she complained that the appellant had not consulted properly on the redundancies. The US denied that it had responsibility to consult, and now appealed.
Lists of cited by and citing cases may be incomplete.
Jurisdiction, Employment, International
Updated: 30 April 2022; Ref: scu.214637
