Staff may sue missions, court rules

Embassies may not be able to rely on state immunity to avoid claims brought against them by locally-employed staff, following a landmark ruling by the UK’s Employment Appeal Tribunal (EAT).

In recent employment tribunals involving local employees at the Embassies of Sudan and Libya, the EAT ruled against the missions relying on state immunity to avoid various race discrimination, holiday pay and working hours claims by members of their domestic staff, due to the pre-eminence of the Charter of Fundamental Rights of the EU.

The effect of this ruling is to leave open the possibility of EU-derived employment rights being claimed against UK-based missions.

However, this contrasts with another recent appeal relating to claims against a UK-based Saudi Arabian diplomat and his wife by domestic staff for race discrimination and wages, in which the same court ruled in favour of the wider protection provided by diplomatic immunity.

Recognising that the law is not clear in this area, the Hon Mr Justice Longstaff (sitting as the president of the EAT), granted all the parties in both actions the right to appeal to the Court of Appeal, the UK’s second highest court.

Commenting on the development, Peter Jones, an employment law specialist lawyer from Thomson Snell and Passmore, explains: “We understand that the appeals have just been lodged, so while these are processed, UK based missions will be exposed to the risk of employment tribunal claims for at least a year and possibly much longer.”

The range of rights in the Charter of Fundamental Rights that may be claimed include sex, age, race, sexual orientation, disability and religion and belief discrimination, as well as holiday pay and working hours rights, although the scope of potential claims currently excludes other UK domestic rights, such as unfair dismissal and national minimum wage claims.

Jones said: “Dismissal on discriminatory grounds could still fall into the range of potential claims, so caution is advised and equal opportunities training is recommended.”

The uncertainty caused by these developments has been identified by the court as a matter of importance, so while the ongoing legal processes will clearly not resolve matters in the short term, the appeals are expected to progress through the courts and there will be clarification in the long run.

Meanwhile UK based diplomatic missions are advised to be on their guard to avoid straying into breaches of complex discrimination, holiday and working time laws.

For information on employment law issues, contact Peter Jones at Thomson Snell and Passmore on: