An interesting decision on the procedure for claiming / challenging state immunity, arising largely from the unusual facts of the case.
Mr Aziz was employed for many years as an accounts assistant at the London embassy of the Republic of Yemen. He claimed unfair dismissal. Solicitors acting for Yemen lodged an ET3, without taking any state immunity point.
On the morning of the hearing, Counsel for Yemen raised the immunity defence. The tribunal rejected this defence, holding that by lodging an ET3, Yemen had waived reliance on state immunity (under s2(5)of the State Immunity Act 1978).
The Employment Appeal Tribunal admitted two witness statements from the Yemeni Ambassador. He said that he was unaware of the right to claim state immunity and had not authorised any waiver. He said that the Embassy had not authorised instruction of solicitors and that the solicitors had entered the ET3 without authority. The EAT accepted this at face value, allowed the appeal and held that Yemen was entitled to claim state immunity.
The Court of Appeal has overturned the EAT's ruling. In a somewhat laconic judgment, the Court of Appeal said that the EAT should critically evaluate claims of this nature (rather than take the Embassy's evidence at face value) and, if a fact-finding mission is needed, remit the case back to a tribunal.
Pill LJ, relying on such factors as the Ambassador had, himself, visited the solicitors' offices (and had denied that an individual at the embassy was a member of the diplomatic staff, despite that individual having been certified as member of diplomatic staff to the Foreign & Commonwealth Office), held that issues of fact as to the accuracy of the Ambassador's evidence arose. Accordingly, the Court of Appeal remitted the case to a (different) tribunal to conduct a fact-finding exercise into whether Yemen had waived state immunity.
Aziz v Republic of Yemen