Philippe Gouraud of Concordia Employment says foreign representations to the UK are no longer exempt to employment laws
Although The world has become a global village, it remains a conglomoration of cultural, linguistic and legal differences. And the misunderstanding of such differences can lead to significant consequences, as two recent cases in UK courts have illustrated once again.
Two employees of foreign embassies in the UK have brought separate claims against their employers. The claims were brought in the UK Employment Tribunal, including for unfair dismissal, race discrimination and breaches of working time regulations.
Immunity is of course a key principle of international law. So the courts had to consider whether those states were immune under the State Immunity Act 1978, which provides immunity to sovereign powers in the UK. Even if the UK has adopted a restrictive approach to such immunity – limiting it only to acts resulting from the exercise of a sovereign power – the Act does provide immunity from employment matters, at least as respect nationals of the foreign embassy and non-UK nationals, or of someone who is not habitually resident in the UK.
More precisely, the UK courts considered whether the Act was still an Act of its time when it comes to allegations of discrimination.
So what were the UK courts’ rulings? After a long process, involving the Employment Appeal Tribunal and the Court of Appeal, the court’s decisions were that the claimants could bring their claims against the embassies, their employers, at least for discrimination and working time, if not for unfair dismissal. The basis for this decision is that the current Act is in fact denying employees of foreign representations their rights of access to a court or tribunal under the European Convention of Human Rights and under the Charter of Fundamental Rights of the European Union.
The Court of Appeal stated that: “viewed through the lens of modern understanding of the importance of non-discrimination, it is untenable to suggest that the forum state has no sufficient interest in adjudicating on the employment law rights of local long-term workers simply because they are non-nationals or happen to have been resident outside the jurisdiction before they commenced their employment.”
The consequences of these decisions are wide ranging, as discrimination cases are high profile and have the potential to significantly affect the reputation of the employers, and of the institutions or states they represent.
Furthermore, court awards, let alone the associated legal defence costs, can be significant. Discrimination cases in recent years have seen UK courts making several awards in excess of £200,000, and as much as £4.4 million in a case brought against the UK’s National Health Services.
And Robert Hill, Partner at the law firm Clyde & Co, warned: “As a result, foreign representations are now increasingly likely to face claims from disgruntled employees. Those claims can be time-consuming, reputationally harmful and expensive. The importance of adopting fair processes is therefore more important than ever.”
This decision has come as a surprise to many foreign representations in the UK. Embassies and High Commissions come to realise that UK employment laws do apply to them, and as such, they are considered as UK employers. And given their size, in terms of employed staff, most embassies and high commissions face the same challenges as many SMEs. They do not have the critical size to have all the support function, including an in-house employment relations professional. Like most SMEs, foreign representation will be looking for outside support to make sure they have the right process, policies and training to meet the requirements set out under the UK employment laws and the Acas Code of Practice.
This case will probably fuel further debate on the extent and scope of diplomatic immunity between international law academics. But meanwhile, in our ‘village world,’ employees are increasingly aware of their rights, and will not hesitate to request fair treatment, in particular in cases when they feel discriminated against.
The recent case of an ambassador in the UK who was taken to tribunal over an employment matter is only evidencing the reality of this exposure. In this particular instance, the employee at the London-based embassy decided to take their Ambassador to court in their home country. With limited success. Had the individual known that they could have taken that same case to a UK court, which jurisdiction would they have chosen?
It will be interesting to observe in the coming months whether foreign representations rapidly adopt best practices and train their management staff, or whether we will be seeing further cases brought to the general public’s attention through additional highly publicised tribunal cases.