In two judgments handed down on 18 October 2017, the Supreme Court (the “Court”) has allowed certain employment claims made by foreign nationals employed as domestic workers at the embassies of foreign states and a diplomat’s residence to proceed despite claims of immunity. The judgments consider important aspects of state and diplomatic immunity, the differences between the two, and wider considerations of the interplay between domestic, EU and international law.
In Benkharbouche (Respondent) v Secretary of State for Foreign and Commonwealth Affairs (Appellant) and Secretary of State for Foreign and Commonwealth Affairs and Libya (Appellants) v Janah (Respondent)  UKSC 62, the Court held that certain provisions of the State Immunity Act 1978 (“SIA”) barring the claims were not justified by any rule of customary international law and were therefore incompatible with both Article 6 (right to a fair trial) of the European Convention on Human Rights (“ECHR”) and Article 47 (right to an effective remedy and to a fair trial) of the EU Charter of Fundamental Rights (the “Charter”). The Court affirmed the Court of Appeal’s decision to (i) disapply these provisions of the SIA to the extent that they conflicted with EU law (Article 47 of the Charter), thereby allowing the employment claims that derive from EU law (discrimination, harassment and holiday pay) to proceed, and (ii) to make a declaration of incompatibility in respect of the SIA provisions under Article 6 of the ECHR – this being the only remedy available in respect of the domestic claims not derived from EU law (including unpaid wages and unfair dismissal), which therefore remained barred.
The Court held that, as a matter of customary international law, states are immune in respect of employment claims only if the claim “arises out of an inherently sovereign or governmental act of the foreign state”. There is “no basis in customary international law for the application of state immunity in an employment context to acts of a private law character”. The Court acknowledged that it is not always easy to determine which aspects of the facts giving rise to the claim “are decisive of its correct categorisation” as an act in exercise of sovereign authority or a private act. It noted that the categorisation will depend on the functions which the employee is employed to perform: the employment of diplomatic agents will be an act of sovereign authority, the employment of technical or administrative support staff may be if their functions are sufficiently close to the mission’s governmental functions (such as certain confidential secretarial staff), whereas the employment of purely domestic staff will be a private act. However, even if the entering into of the employment contract is not an exercise of sovereign authority, immunity could still extend to some aspects of the treatment of such employees or potential employees where this engages the state’s sovereign interests. The Court gave as examples claims arising out of an employee’s dismissal for reasons of state security, or claims in connection with recruitment or for reinstatement post dismissal which impinge on a state’s recruitment policy for civil servants or diplomatic or military employees.
In Reyes (Appellant/Cross Respondent) v Al-Malki and another (Respondents/Cross-Appellants)  UKSC 61, the Court found that a diplomat’s immunity after leaving his or her post is limited by Article 39 of the Vienna Convention on Diplomatic Relations 1961 (the “Vienna Convention”) to acts performed in the exercise of their diplomatic functions, regardless of whether the diplomat was otherwise entitled to immunity at the time the relevant acts took place. The Court held that the employment and mistreatment of domestic staff does not fall under the category of acts performed in the exercise of diplomatic functions and allowed Ms Reyes’ appeal.
As the appeal was decided on the basis of Article 39(2) of the Vienna Convention, the Court was not required to rule on whether the exception to immunity for a diplomat while still in post for “professional and commercial activity” outside of official functions (Article 31(1)(c)) applied . The Court of Appeal had ruled that it did not, rejecting the argument that if, as claimed (but disputed), Ms Reyes had been the victim of human trafficking, Mr Al-Malki’s act of employing a trafficked individual could constitute a “professional or commercial activity”.
The Court nevertheless provided certain views on the Court of Appeal’s finding, emphasising that they were obiter and non-binding. The Court noted that a professional or commercial activity connoted a course of business rather than a one-off purchase or act, in effect someone “setting up shop.” Two of the five judges were of the opinion that Mr Al-Malki would have been immune notwithstanding Ms Reyes having been trafficked. Lords Sumption and Neuberger acknowledged the “growing concern of international law with human trafficking”  but did not consider that the wording of Article 31(1)(c) could be interpreted to include ‘customers’ of human trafficking, in part because the history of negotiations in drawing up the Convention showed the narrow scope of activities intended to be captured .They emphasised that procedural immunity does not impinge upon the wrongfulness or illegality of the underlying actions, and cited examples of immunity being available in cases involving torture and crimes against humanity . Conversely, the remaining three judges (Lord Wilson, Lady Hale and Lord Clarke) doubted that the ‘customer’ of human trafficking could so easily be separated from the overall activity of human trafficking , or that the Vienna Convention could not be interpreted according to “the natural development of the meaning of an article in accordance with the development of international law” . The precise scope of diplomatic immunity in post in this regard, in particular whether trafficked domestic workers may still be able to bring a claim, therefore remains a grey area.
For further details, see our Public International Law blog post here.