EAT JURISDICTIONAL POINTS
Two domestic workers, employed one after the other by the First Respondent, a diplomat, and Second Respondent, his wife, (the appellants in this appeal) asserted they had been denied their contractually agreed or minimum wages, and had been discriminated against because of their race. They said they had been trafficked. The Respondents claimed diplomatic immunity. The ET held that the restriction of the plea of diplomatic immunity in the Vienna Convention, where a diplomat had engaged in commercial activity outside his official functions, applied. Although the employment of domestic staff was not on the face of it commercial activity, to claim immunity operated as a procedural bar which represented a disproportionate interference with the Claimants’ right to access a court, contrary to Art. 6 ECHR. Accordingly, ‘commercial activity’ was to be interpreted under s.3 HRA as including the employment of such staff as the Claimants.
In reaching her decision, the judge relied on recent Strasbourg authority which concerned State rather than diplomatic immunity. That had in turn been heavily influenced by an international Convention of 2004, relating to State but not diplomatic immunity. She had failed accurately to identify and express the underlying rationale for the plea of diplomatic immunity; had wrongly considered that the seriousness of the claims was relevant in considering proportionality; and wrongly concluded that the plea of immunity should not be respected. The appeal was allowed.
A further appeal, against a conclusion that the Respondents had been validly served, was rejected, as was a cross-appeal arguing that for an ET to permit a plea of diplomatic immunity to be raised in a potential case relating to trafficked individuals would be in breach of Art. 4 ECHR.
Permission to appeal was granted, since there is apparently no decided case which has yet considered whether the previous approach to diplomatic immunity should be modified in respect of employment claims in the same way as has occurred where State immunity is claimed.
Judges:
Langstaff P J
Citations:
[2013] UKEAT 0403 – 12 – 0410, [2014] ICR 135, [2013] IRLR 929
Links:
Jurisdiction:
England and Wales
Cited by:
Appeal from – Reyes and Another v Al-Malki and Another CA 5-Feb-2015
The claimants wished to make employment law claims alleging, inter alia, that they had suffered racial discrimination and harassment, and had been paid less than the national minimum wage aganst the respondents. They had been assessed as having been . .
At EAT – Reyes v Al-Malki and Another SC 18-Oct-2017
The claimant alleged that she had been discrimated against in her work for the appellant, a member of the diplomatic staff at the Saudi Embassy in London. She now appealed against a decision that the respondent had diplomatic immunity.
Held: . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 15 September 2022; Ref: scu.516755