The Limits of State and Diplomatic Immunity in Employment Disputes

Abstract

TWO decisions of the Supreme Court – Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs [2017] UKSC 62, [2017] 3 W.L.R. 957, and Reyes v Al-Malki [2017] UKSC 61, [2017] 3 W.L.R. 923 – demonstrate the limitations of state and diplomatic immunity in employment disputes, and raise important questions concerning the interaction between immunity and other rules of international law.

State immunity and employment relationships before the European Court of Human Rights

“…5 However, over time, public employees have increasingly come within the scope of Article 6, either because their claims have been included at a national level within the bounds of 'private' employment law or because from a functional perspective they do not display characteristics which set them apart from other private employees. 6 The position now is that public employees must be considered within the scope of Article 6 unless they fall within the scope of the test set out in the case of Eskilinen. 7 This test requires an 'express exclusion' for public employees from bringing a private employment claim as a matter of national law, and that exclusion must be justified on objective grounds 2 For example, Cheminots (railway workers) have access through the job for life (except in the case of gross misconduct) which is also the case for public servants (fonctionnaires), a retirement age which can be from the age of 50 for train drivers and from 55 for other railway employees (from 2024 this will be 52 and 57 respectively-in the private sector the retirement age is 62), a final-salary pension scheme, access to specific health care, and free and/or reduced price travel for direct family.…”