Challenging immunity

Two recent landmark judgements in the Supreme Court mean embassies and diplomats may no longer be immune from legal claims made by their workers for unfair treatment. Employment lawyer Andreas White explains the implications for missions and
the impact Brexit may have on these rulings

There is an old saying that goes “You wait ages for a bus, then two come along at once.” State and diplomatic immunity are only rarely the subject of consideration by the highest court in the land. After waiting ages for one case, in October we saw two Supreme Court judgments on diplomatic and state immunity arrive on the same day.

These test cases concerned the impact of state and diplomatic immunity on employment claims by domestic workers. They have established that diplomatic and state immunity in the employment context are not absolute and can successfully be challenged.

The limits of personal diplomatic immunity
The facts of Reyes v Al-Malki were that a domestic worker employed by a diplomat and his wife during their stay in the UK complained that she had been a victim of trafficking and was mistreated during her employment. She claimed that she had been racially discriminated against and not been paid the national minimum wage.

The allegations have not yet been determined because the respondents sought to rely on diplomatic immunity under the Vienna Convention on Diplomatic Relations (which has force of law in the UK under the Diplomatic Privileges Act 1964). The Court of Appeal held that the employment tribunal had no jurisdiction to hear the claim because of the diplomatic immunity enjoyed by the diplomat and his wife. The Supreme Court has now overturned that decision.

• It was held that the following rules apply regarding the personal immunity of a diplomatic agent:
  Diplomatic immunity is not an immunity from liability. It is a procedural immunity from the courts of the receiving state.
• During their diplomatic mission, a diplomat (and family members forming part of his or her household) is generally immune from the criminal, civil and administrative jurisdiction of the receiving state.
• The Convention draws a fundamental distinction between the acts of a diplomat which are performed in the exercise of an ‘official function’ as a member of a diplomatic mission and those which are not. The former are immune because they are committed on behalf of the sending state. The immunity of the latter acts of a diplomat in their personal or non-official capacity is justified on the pragmatic basis that it facilitates diplomatic relations. With limited exceptions (the main one concerns ‘any professional or commercial activity’ outside a diplomat’s official functions) the diplomatic immunity of diplomats (as opposed for example to the administrative and technical staff of a mission) covers both types of acts, official and private.
• However, once a diplomat’s posting comes to an end, his or her immunity after leaving the receiving state (or on expiry of a reasonable time in which to leave) subsists only in respect of acts performed in the course of exercising official functions on behalf of the sending state.

If ever there was an assumption in some parts of the diplomatic community in London that they enjoyed complete immunity from local employment law claims, these cases will have dispelled that myth for good

As a result the Supreme Court held that the employment tribunal claims could proceed against the diplomat and his wife. His diplomatic posting had come to an end and their employment and treatment of the claimant were not part of his official functions. The employee’s duties included cleaning, helping in the kitchen and childcare.

The Supreme Court held that whilst these activities may have been conducive to the performance of the diplomat’s official functions (as found by the Court of Appeal) that did not make the employment of the claimant part of the official functions of the diplomat: the employment and alleged mistreatment of the claimant could not be said to have been done for or on behalf of the sending state.

Moreover, the Supreme Court held that it was irrelevant that the acts complained of occurred, and the claims were brought, during the course of the diplomatic mission, when full immunity existed. That is because immunity extends only to jurisdiction and not to liability. In other words, immunity may delay, but does not necessarily defeat, employment law claims against a diplomat.

As an aside, the effect of this case appears to be that in the case of the administrative and technical staff of a mission, and their families (and indeed also in the case of diplomats who are a national of or permanently resident in the receiving state, and consular officers and employees) no immunity can ever apply in relation to private acts such as the employment of domestic staff.

Clarifying the current state (immunity) of the law
Libya v Janah and Benkharbouche v Sudan concerned the law on state immunity, again in the context of employment claims brought by foreign domestic workers. However, this time they were employed directly by the states in whose embassies they were working. They brought various claims, including unfair dismissal, race discrimination, harassment, unpaid wages and holiday pay. The employment tribunal initially refused jurisdiction on the basis of state immunity, but this was overturned on appeal.

The State Immunity Act 1978 (‘SIA’) sets down the rules of state immunity in the UK. The details of the rules on state immunity are beyond the scope of this article, but special provisions apply to proceedings relating to employment contracts. On the face of it, one of those provides that state immunity will prevent claims concerning the employment of members of a diplomatic or consular mission.

However, the Supreme Court held that the rules on state immunity in the SIA are incompatible with the European Convention on Human Rights right to a fair trial. It ruled that the Charter of Fundamental Rights of the EU (“the Charter”) means they must be dis-applied insofar as they bar employment law claims within the scope of EU law. In this case the discrimination, harassment and holiday pay claims can therefore proceed.

For the time being, the rules in the SIA continue to impede embassy workers from bringing employment law claims against a state insofar as their claims are based solely on UK law (e.g. unfair dismissal and whistleblowing claims). The Supreme Court did not have the legal power simply to dis-apply the SIA in the case of claims based purely on UK law.

The current legal uncertainty surrounding Brexit also means that the scope for embassy workers to bring similar employment claims in the medium and long term is uncertain

The impact of Brexit on future claims
It upheld, however, the Court of Appeal’s declaration that the SIA is incompatible with human rights law. This is a prompt to the Government and Parliament to amend the law to ensure conformity with their human rights obligations. Whether that is likely during the current pre-occupation with Brexit is doubtful.

The current legal uncertainty surrounding Brexit also means that the scope for embassy workers to bring similar employment claims in the medium and long term is uncertain. This is because although the Government’s general intention in relation to EU law on Brexit is to preserve existing rights, it intends to remove the Charter from UK law.

It should be noted that the outcome would have been different if the foreign states’ employment of the claimants had been sovereign acts. That depends on the nature of the employment relationship and the functions which the employee is employed to perform. If the claimant’s employment had involved the exercise of sovereign power (for example if they had been diplomatic staff) or if some other sovereign interest had been involved (for example state security) then their claims would have been barred

Practical implications
If ever there was an assumption in some parts of the diplomatic community in London that they enjoyed complete immunity from local employment law claims, these cases will have dispelled that myth for good. They raise some highly technical questions as to the applicability of diplomatic and state immunity to employment law claims, depending on the circumstances.

From a legal and practical perspective, embassies would be well advised to observe the general norms and requirements of local employment law (and associated best practice) since the availability of immunity in any given case cannot be guaranteed, and when it comes to employment disputes, prevention is better than cure.

Andreas White is a partner and James Murray is an associate at Kingsley Napley LLP, a leading London law firm. For further advice on this case or on UK employment law in general, contact awhite@kingsleynapley.co.uk