Thanks to Paul Smith of Broadway House Chambers for preparing this case summary
If diplomatic immunity prevents an employee from obtaining redress through an employment tribunal, does this breach the employee's rights under Article 6 of the European Convention on Human Rights?
No, says the EAT in Al-Malki v Reyes & Suryadi.
The Claimants were employed as domestic staff by a diplomat and his wife at the Saudi mission in London. They brought contractual and discrimination claims against the couple, who both claimed diplomatic immunity under the Diplomatic Privileges Act 1964, the legislation which incorporates the Vienna Convention on Diplomatic Relations 1961 into domestic law.
Both parties agreed that Article 6 "generally, the right to a fair trial" was engaged because if the Respondents had diplomatic immunity the Claimants' right of access to a court or tribunal would be restricted absolutely. The Claimants argued that such interference with their Article 6 rights was disproportionate to the legitimate (diplomatic) aims of the Respondents.
In giving the judgment of the EAT, Langstaff J highlighted the distinction between "state" immunity and "diplomatic" immunity, reminding us that the latter is of wider scope than the former. Further, unlike in the case of state immunity where there is authority and international convention which shows us when such immunity may breach an individual's Article 6 rights, there is no equivalent in the case of diplomatic immunity. In the absence of judicial guidance as to how the test of proportionality is to be applied in cases of diplomatic immunity, the President concluded that there was no breach of Article 6.
As with Benkharbouche v Sudan (reported last week), which concerned the interaction between state immunity and EU law, permission to appeal to the Court of Appeal was granted given the important point of principle at the core of the case.