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Employers beware - the risk of hiding behind diplomatic credentials

Employers beware - the risk of hiding behind diplomatic credentials

Published: 22 June 2018

As Boris Becker seeks to avoid litigation on the basis of diplomatic immunity we ask – do the principles of state and diplomatic immunity protect employers from employment claims bought by their staff? 

Not always!

The UK has one of the largest diplomatic communities in the world, with thousands of members of foreign missions employed to serve as diplomats, administrative, operational or technical staff.  In addition, serving diplomats will often employ their own private servants.  It is therefore inevitable that employment disputes will arise from time to time.  

When faced with an employment dispute, an employer may believe themselves to be protected by state immunity or by diplomatic immunity.  Such immunity has historically limited the rights of the Courts of one state to exercise authority over a sovereign state (such as an embassy) or its officials.  However, these immunities have their limitations.  Employers should be aware that, in certain circumstances, state or diplomatic immunity may not apply and employees may be able to bring a claim in the UK Court or Tribunal.   

Two recent Supreme cases offer useful authority as to the extent to which the concepts of state and diplomatic immunity extend to the employment relationship. 

State Immunity

In Benkharbouche v Secretary of State for Foreign & Commonwealth Affairs & Anor, the Supreme Court affirmed the decisions of the EAT and the Court of Appeal that foreign nationals employed at embassies in the UK as domestic workers can bring claims in the Employment Tribunal for EU derived claims such as discrimination, harassment and holiday - even though the provisions of the UK’s State Immunity Act 1978 (SIA 1978) appear to bar them from doing so. 

Two Moroccan foreign nationals, Ms Janah and Ms Benkharbouche, were employed in the UK Sudanese embassy and UK Libyan embassy respectively as domestic workers.  They each sought to bring various Employment Tribunal claims, some based on domestic English rights (including for unfair dismissal and unpaid wages) and others derived from EU law (such as race discrimination, harassment and holiday pay).  The embassies argued that they were immune from the claims owing to the protections under the SIA 1978 (which itself permits employment related claims by employees of embassies only in very limited circumstances).   

The Supreme Court held that there is no basis in customary international law for the application of state immunity in an employment context where the acts were of a “private” character; and domestic work was clearly not an exercise of sovereign authority.  The relevant provisions of the SIA 1978 breached EU rights under Article 6 (right to a fair trial) and Article 14 (right not to be discriminated against in respect of Convention rights) of the ECHR, as well as the right of access to a Court guaranteed by Article 47 of the Charter of Fundamental Rights.  As any conflict between domestic law and directly effective EU law must be resolved in favour of EU law; the correct approach was to dis-apply domestic law (SIA 1978).  Therefore the claims derived from EU law (discrimination, harassment and holiday pay) were permitted to proceed.  However, the domestic claims (such as unfair dismissal) were barred by the provisions of the SIA 1978 and so these claims could not be brought. 

Diplomatic immunity

Generally diplomatic immunity extends further than state immunity and includes transactions which are outside diplomatic official functions, some of which will inevitably be of a private character - including the employment of domestic staff. However, in Reyes v Al-Malki and another the Supreme Court considered that diplomatic immunity did not apply to a diplomat in respect of his mistreatment of a domestic worker, once the diplomatic mission had come to an end.     

Ms Reyes, a Philippine foreign national, was employed as a domestic worker in the household of a Saudi diplomat in London.  Ms Reyes alleged that she was a victim of human trafficking and bought claims for race discrimination, unlawful deduction from wages and failure to pay the national minimum wage. She alleged that

  • She worked excessive hours.
  • She was not provided with proper accommodation.
  • Her passport was confiscated.
  • She was not allowed out of the house or to communicate with others.

The 1961 Vienna Convention on Diplomatic Relations (The Vienna Convention) confers different degrees of immunity on persons concerned with a diplomatic mission, according to their status and function. The Supreme Court considered whether or not the UK Tribunals had jurisdiction to hear the claims within the exceptions to the rules contained within the Vienna Convention.

The Supreme Court reached its conclusion on the basis of Article 39 of the Vienna Convention.  Article 39 states that once a diplomatic mission came to an end, the diplomat ceases to enjoy diplomatic immunity, save in relation to official acts performed during the mission.  Further, the Supreme Court held that employment of domestic staff was not part of the diplomat’s official functions, so residual immunity did not attach to this activity. 

It is also noteworthy that the Court expressed the opinion that employing domestic staff did not amount to a professional or commercial activity; therefore the exemption under Article 31 (that immunity will not apply to professional or commercial activities performed outside official functions) is unlikely to apply in the domestic sphere. 

Conclusion

In light of these Judgments, it is advisable that embassies and individual diplomats carefully consider the extent of their respective immunities and the potential for employment claims to be bought against them.  Embassies and diplomats would be wise to review the terms on which they employee their staff and consider the risk that employment claims bought against them could be submitted to the UK Courts and Tribunals.

It should be noted that both state and diplomatic immunity are immunities from jurisdiction, but not liability.  If an employee cannot bring a claim in the UK under UK law, they may (if applicable) choose to bring a separate claim in their own jurisdiction.   

For any further guidance or information on this matter or any other employment matters, please contact: Hollie Whyman, Solicitor on Hollie@fletcherday.co.uk or Nicholas Evans, Partner, on nicholas@fletcherday.co.uk.  Or call 0207 240 7617.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.