A recent decision of the Employment Appeal Tribunal (EAT) has significantly reduced the scope for embassies and high commissions to claim immunity in relation to claims brought by their locally engaged staff in the UK. This will have important implications for how such employees are treated in the future.
Embassies and high commissions have generally been immune from the jurisdiction of the courts and tribunals in UK, as representatives of foreign sovereign states. In particular, employment tribunals in the UK did not have jurisdiction to consider claims brought by locally engaged staff of embassies and high commissions unless such claims involved some form of personal injury to the member of staff. The decision in Benkharbouche v Embassy of the Republic of Sudan and another case has fundamentally altered this position.
These combined cases involved a cook, Ms Benkharbouche, employed by the UK Sudanese embassy, and Ms Janah, a member of domestic staff employed at the UK Libyan embassy. These individuals brought a number of employment related claims including unfair dismissal, discrimination, unpaid wages and holiday pay. The claims were initially rejected on the basis that the Sudanese and Libyan embassies were immune from the jurisdiction of the UK courts under the provisions of the State Immunity Act 1978 (SIA).
Ms Benkharbouche and Ms Janah appealed the decision to reject their cases on the basis that the SIA prevented their access to justice and was therefore contrary to their right to a fair trial under the European Convention on Human Rights, as well as amounting to a breach of a similar right under the Charter of Fundamental Rights of the European Union. The EAT ruled that the SIA could not be amended or disapplied to enable the individuals' claims to proceed. However, the EAT did decide that as non-discrimination was a general principle of EU law, national laws, such as the SIA, which conflicted with it must be set aside. This meant that Ms Benkharbouche's and Ms Janah's claims for discrimination and holiday pay were allowed to proceed, because these claim originally derived from EU legislation.
This decision exposes embassies and high commissions to a much greater threat of employment claims from their locally employed staff. Employees and former employees will now be able to submit claims in relation to discrimination and holiday pay, as well as other claims derived from EU law, without embassies and high commissions having the protection of diplomatic immunity in place. Although the case has been referred to the Court of Appeal, the decision will be followed by lower courts for the immediate future.
Ensuring that locally engaged staff are treated in accordance with UK employment law has now become even more important and administrative and protocol secretaries who have responsibility for internal employment matters will need to be fully aware of the complexities of this area of law in the UK.
Diplomats in the UK will though still be able to rely on diplomatic immunity in relation to claims brought by any domestic staff they employ personally. This position was confirmed in the recent case of Al-Malki v Reyes, which concerned claims for race discrimination and unlawful deductions from wages brought by two members of domestic staff employed by a diplomat and his wife at the Saudi mission in London. In its decision, the EAT ruled that "diplomatic" immunity is wider than "state" immunity and that preventing the claims to proceed did not breach the individuals' right to a fair trial under the European Convention on Human Rights. As with the Benkharbouche case, this claim has been referred to the Court of Appeal for further consideration.
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