knowledge | 31 March 2015 |
Diplomatic/Sovereign Immunity in Employment Cases
Until recent years, the position with respect to claims of employees by diplomatic agents/ missions in Ireland was fairly clear; in most cases where it could be shown that an employee’s role touched upon the sovereign function of the state in question, the diplomatic agent/ mission would be able to rely on diplomatic immunity or sovereign immunity in order to avoid employment claims brought against it. More recently, the scope of protection afforded by diplomatic/ sovereign immunity has been eroded by judgments from Europe which have been reflected in our domestic tribunals.
The Vienna Convention on Diplomatic Relations of 1961 (“the Convention”) provides that a diplomatic agent enjoys immunity from the criminal, civil and administrative jurisdiction of the receiving State. This has force of law in Ireland by virtue of the Diplomatic Relations and Immunities Act 1967. There are exceptions including actions for private immovable property, actions relating to succession and “an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official function”.
Sovereign immunity differs from diplomatic immunity in that it concerns the foreign state itself rather than a diplomatic agent. Sovereign immunity is a fundamental part of Irish law and implemented into the Constitution by virtue of the provisions of Article 29.3 which provides that “Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other States”.
Decided Irish Caselaw
In Saorstát and Continental Steam Ship Company v De Las Morenas  IR 291, the Supreme Court decided that the “immunity of sovereign States and their rulers from the jurisdiction of the Courts of other States” had “long been recognised as a principal of international law” and so by Article 29.3 “must now be accepted as a part of our municipal law”.
The doctrine was considered by the Supreme Court in the case of The Government of Canada v Employment Appeals Tribunal and Burke  2 IR 484. The Supreme Court concluded that “if the activity called in question truly touches the actual business or policy of the foreign government then immunity should still be accorded to such activity”. The Supreme Court went on to find that the employment of a chauffeur working in the Canadian Embassy was not a normal commercial contract but a contract of service and therefore the Embassy was entitled to rely on the principle of sovereign immunity in a claim brought by the employee to the Employment Appeals Tribunal (“EAT”). The Supreme Court stated in its judgment that “once one approaches the Embassy gates one must do so on an amber light… I believe that the element of trust and confidentiality that is reposed in the driver of a Embassy car creates a bond with his employers that has the effect of involving him in the employing government’s public business organisation and interest. Accordingly, I hold that the doctrine of restrictive State Immunity applies to this case”.
As a Supreme Court case, the Canadian Embassy case remains of influence in claims of this nature and has been followed in many cases since then by the employment courts and tribunals e.g. Damery v The Italian Embassy Labour Court (ADE/02/5/0417) where it was decided that the secretarial work carried out by the complainant was of a nature that had created an element of trust and confidentiality to such an extent that the complainant was participating in the public acts of the Italian State and that the doctrine of restrictive sovereign immunity applied. In Geraghty v The Embassy of Mexico UD899/97 it was decided that, in the case of a claim for unfair dismissal by a secretary working in the Mexican Embassy, the principle of sovereign immunity operated to deprive the EAT of jurisdiction to hear the matter.
However, recent developments in the European Courts (e.g. Cudak v Lithuania (2010) ECHR 15869/02, Sabeh El Leil v France (2011) ECHR 34869/05 and Mahamdia v Peoples Democratic republic of Algeria (2012) C-154/11) have shown that absolute sovereign immunity no longer applies.
In the Cudak case, Ms Cudak was employed as a switchboard operator for the Polish Embassy in Vilnius. After the courts of Lithuania declined jurisdiction based on sovereign immunity, she took a claim to the European Court of Human Rights (“ECHR”). The ECHR decided that immunity applied in employment related cases of diplomatic and consular staff. However, Ms Cudak had not performed any particular functions closely related to the exercise of governmental authority or related to the exercise of sovereignty by the Polish State and therefore, sovereign immunity did not apply. The mere possibility that she had access to documents and had been privy to confidential phone calls was not sufficient for sovereign immunity to apply.
The Sabeh case involved an employee who was the head accountant of the Kuwaiti Embassy in Paris. The ECHR decided that the application of state immunity had been eroded. In this case, there was nothing to prove that the employee’s work entered the public sphere and therefore, sovereign immunity did not apply.
The Mahamdia case concerned a dispute between the Algerian Embassy in Germany and its former chauffeur who had been dismissed. A reference was made to the Court of Justice of the European Union (“CJEU”) by the German courts. The CJEU decided that immunity from jurisdiction is not absolute and may be excluded if the legal proceedings relate to acts that do not fall within the exercise of public powers such as this case. Furthermore, the CJEU found that the Algerian Embassy could not use an agreement on jurisdiction concluded before the dispute arose to impose its own jurisdiction on the complainant.
Reaction at Home
Inevitably these European cases have been followed in this jurisdiction. A case which gained much public attention in 2014 involved three women from the Philippines who had been working in the home of the Ambassador to Ireland of the United Arab Emirates (Myra Calderon, Laylanie Laporga, Jennifer Villaranda v Khalid Nasser Rashed Lootah and Mahra Metad Alghubaisi UD1219/2013, UD1220/2013, UD1221/2013).
The EAT found that “all three appellants ‘functions as a Nanny/Domestic Help in the respondent’s private residence did not fall ‘within the restricted form of state immunity’ as considered in the Canadian case nor did their position involve them ‘within the exercise of public powers’ according to the test set out in Mahamdia”. The EAT went on to find in favour of the three workers and awarded them €80,000 each as a result of “a complete non-adherence to any of the appellants’ employment rights”.
In 2014 the Department of Foreign Affairs issued a new set of guidelines for diplomats employing domestic workers in Ireland following the ratification of the International Labour Office Convention on Decent Work for Domestic Workers. The guidelines state that “Members of Missions wishing to employ private domestic employees are expected to demonstrate respect for Irish laws and good employment practice. An agreed undertaking of the terms and conditions of employment, in line with Irish employment law, signed by both the employer and the employee is required prior to arrival in Ireland”.
Despite the introduction of these guidelines, the Equality Tribunal recently decided that an individual who was employed as a childminder and housekeeper by two South African diplomats did not have legal standing to bring a case against the Republic of South Africa. (Senelisiwe Buthelezi v Coy Dlamini and Thobeka Dlamini & Republic of South Africa DEC-E2016-105)
The individual was employed by the first and second named respondents under a contract of employment whose terms and conditions were governed by the law of South Africa. Her remuneration was in the currency of South Africa, the rand and her place of work was at the private residence of the first and second named respondents.
The claimant sought to distinguish her position from the Canadian case stating that her duties did not overlap with the South African Government’s public business organisation and interests, unlike the chauffeur’s role. However, the tribunal stated that it could not deviate from the findings of the Supreme Court decision in the Canadian case and therefore it did not have jurisdiction to hear the claim stating that the complainant could only enforce her rights in the Republic of South Africa.
The Tribunal found that the Republic of South Africa “in circumstances where a private contractual arrangement was entered into… could never be vicariously liable for the actions of the first and second names respondents”. Furthermore, the Tribunal considered that while immunity of states from jurisdiction is enshrined in international law, that immunity is not absolute. It does not apply in cases where an embassy employee contests the termination of his employment and the functions carried out by that person “do not fall within the exercise of public powers, or where the proceedings are likely to interfere with the state”.
In addition, a decision from the Employment Appeals Tribunal is currently pending in relation to the alleged unfair dismissal of a security guard, working at the US embassy in Dublin. The US embassy has claimed diplomatic immunity; however counsel for the employee has argued that immunity only applies to employees engaged in the exercise of public powers. A decision is expected to be published shortly.
It seems therefore that the ability of foreign agents/missions in this country and other countries in Europe to rely on diplomatic/sovereign immunity in relation to employment matters is no longer absolute and each case will have to be considered in light of it own facts. Moreover foreign agents/ missions will have to take the laws of the receiving state into consideration prior to entering into any employment arrangement in order to avoid potential claims.
This briefing is for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.