Embassies and Employment Tribunal Claims - Recent Supreme Court Decisions on Immunity
Two recent cases before the Supreme Court have questioned whether there should be immunity for embassies and embassy employees in respect of employment claims brought by domestic staff.
What Happened in the Cases?
In Benkharbouche v Secretary of State for Foreign & Commonwealth Affairs & Anor claims were made by Moroccan nationals who had been employed as domestic workers by the Sudanese and Libyan embassies in London. After being dismissed from their employment, both brought claims in the employment tribunal, some of which were based on UK law and some on EU law. The Supreme Court ultimately upheld the decision of the Court of Appeal in deciding that Libya and Sudan were not entitled to state immunity in respect of the claims brought in this case owing to the private law character of the acts complained of. The acts did not stem from the exercise of sovereign authority to which state immunity may have attached.
Similarly, in Reyes v Al-Malki the claimant had been employed as a domestic worker in the London residence of Mr Al-Malki who was a diplomat of the Saudi Arabian embassy in London. Ms Reyes brought a number of claims in relation to her employment, including that she had been a victim of human trafficking. However the question arose of whether the employment tribunal had jurisdiction to hear the claims or whether Mr Al-Malki was protected by diplomatic immunity. The Supreme Court held that diplomatic immunity would not apply as the employment of Ms Reyes and the alleged treatment were not "acts performed by Mr Al-Malki in the exercise of his diplomatic functions."
Does This Affect My Business?
These two Supreme Court decisions have quite a specific ambit meaning that they will have limited application for many employers. If state immunity is to take priority over the right of access to the courts, then the Supreme Court noted that there must be "consistent practices of states on the point in question". Where that is not the case then it appears that the courts will strive to protect the rights of individuals to access remedies.