We've all heard of Diplomatic Immunity, and how foreign diplomats can have immunity from national legislation such as parking restrictions, speeding fines etc. etc. However a recent case has shown how this immunity is dealt with when it comes to Employment Tribunals.
The case in question related to Asha Abdullahi Adan -v- Embassy of the Republic of Kenya (UD2163/2011) where the employee had been dismissed from their position as a cleaner, having held the position since 2007. It was alleged that in May 2011 the employee told the employer she was pregnant, subsequently the employer asked her to lift a heavy item which she said she could not as she was pregnant, and on 30th May the employee was informed that they were being let go but could re-apply for her role, which she was unsuccessful in.
The Employer failed to attend the hearing but the Tribunal addressed the issue of diplomatic immunity at the outset and said that it was not for them to "step into the shoes" of the Embassy in contesting whether or not sovereign immunity applied and if the Tribunal had the jurisdiction to hear the claim.
However it was held that the doctrine of absolute sovereign immunity no longer existed as a result of Government of Canada -v- Employment Appeals Tribunal (1991) which went to the Supreme Court, but some restricted form of state immunity still existed in certain positions where trust and confidentiality are an issue. The Canada case determination by the Supreme Court was also backed up by the 'Mahamdia' Judgement (case C-154/11) which was ruled on by the European Court of Justice following a dispute with the Algerian Embassy in Germany.
Determination
In this case the EAT ruled that given the employees position no state immunity existed and as the doctrine of absolute immunity did not exist it was deemed to have been an unfair dismissal and the employee was awarded €44,200 for Unfair Dismissal and €850 in lieu of notice.
It is interesting to note however that in another EAT case relating to an Embassy, Michael Greene -v- Embassy Of India (UD352/2011) the claim was not upheld due to the employer enjoying immunity. The facts of this case are unclear and some state immunity may have existed, but ont he face of it, it flies in the face of the ruling above, both of which were made by the EAT albeit different chairpersons.
