State and Diplomatic Immunity

September 16th, 2021

The appeal to the EAT (Clive Sheldon QC) in Nigerian High Commission v Ihame, Judgment on 15 September 2021 raised issues relating to State and Diplomatic Immunity in the context of a race and religion discrimination and victimisation claim by an employee of the High Commission.  The claim was tantamount to bringing a claim against the Federal Republic of Nigeria.  The ET had misdirected itself by failing to consider whether or not the employment involved an inherently sovereign or governmental act or was a purely private act. This was a misapplication of the Supreme Court’s Judgment in Benkharbouche (2017) ICR 1327.  If the former, State Immunity applies and the claims have to be dismissed on that ground.

The Judge said:-

“41.     In my judgment, the Nigerian High Commission is not a corporate or legal entity which is itself capable of being sued …”.

“42.     I consider, however, that naming the Nigerian High Commission as the Respondent in this case was tantamount to naming Federal Republic of Nigeria as the Respondent …”.

“58.     The Supreme Court in Benkharbouche considered whether sections 4(2)(b) and 16(1)(a) of the 1978 Act which conferred immunity on states in respect of employment claims brought by embassy staff were consistent with Article 6 of the European Convention of Human Rights (“the ECHR”) and article 47 of the European Charter of Human Rights.”

“61.     The Supreme Court held that customary international law contained a rule that a state was entitled to immunity only in respect of “an inherently sovereign or governmental act”, as opposed to acts of a private law character… It was held that the provisions of the 1978 Act which purported to confer immunity more generally – and were not limited to inherently sovereign or governmental acts – were incompatible with article 6 of the ECHR.

62.       With respect to claims derived from EU law (discrimination, harassment and breach of the Working Time Regulations, as a result of the application of Article 47 of the European Charter of Human Rights, the Supreme Court held that the provisions of the 1978 Act which purported to confer immunity had to be disapplied.

63.        Lord Sumption observed that it was “not always easy to determine” how to categorise cases that were and were not those involving an “inherently sovereign or governmental act of the foreign state”. In the great majority of cases, Lord Sumption stated that this would depend “on the nature of the relationship between the parties to which the contract gives rise. This will in turn depend on the functions which the employee is employed to perform””

“65.     In accordance with Benkharbouche, therefore, in any claim involving a diplomatic mission careful consideration needs to be given to the particular employment situation of the claimant: whether their employment situation involved an inherently sovereign or governmental act, or a purely private act …, the Employment Tribunal proceeded on the assumption that the Claimant was entitled to pursue her claims that derived from EU law simply as a result of the Judgment of the Supreme Court in Benkharbouche without exploring further her particular employment situation. In my judgment, this was a misdirection by the Employment Tribunal …the matter cannot be decided either way, and it needs full and proper consideration by an Employment Tribunal …”

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