The British Council v Ana-Maria Beldica

An overseas employee will only exceptionally fall within British employment protections. A plea of state or diplomatic immunity, and consequent lack of a local remedy, does not of itself supply the something more needed to displace the territorial pull of the place of employment.

The diplomatic and consular-agent exception to article 1 of the European Convention on Human Rights requires an actual exercise of state-agent authority and control over the relevant Convention right. A hypothetical future plea of immunity, or a decision not to waive immunity, does not meet that requirement. Nor may a tribunal assume that an immunity plea would breach international law without the necessary factual and legal assessment.

The claimant was a Romanian national employed by the British Council in Dubai as an HR Business Partner for the Middle East and North Africa. Her contract was governed by UAE law, she was paid in UAE currency, and her work had no material connection with the United Kingdom.

After her employment ended, she brought unfair dismissal, pregnancy or maternity discrimination, and redundancy claims in the Employment Tribunal. The Tribunal held that it had jurisdiction. It reasoned counterfactually that the British Council would successfully claim diplomatic immunity if she sued in the UAE, thereby engaging article 6 of the European Convention on Human Rights and the Human Rights Act 1998.

The British Council appealed. The central issue was whether an actual or assumed immunity plea in the UAE could establish the extra-territorial reach of British employment legislation.

1. Appeal allowed. The Tribunal’s jurisdictional decision was set aside. The claimant could identify no actual relevant act or omission by the respondent which brought her within the United Kingdom’s article 1 ECHR jurisdiction. Its earlier use of immunity in another case and its general status under the Embassy’s umbrella did not amount to authority or control over her right of access to a UAE court.
2. Even on the Tribunal’s counterfactual assumption that the claimant would have brought UAE proceedings and the respondent would have pleaded immunity, the plea would not constitute an exercise of United Kingdom authority or control over the UAE court. Immunity is a plea for the forum court to determine; it does not usurp that court’s authority. The state’s power to waive immunity is merely an unexercised power and, on the reasoning in Sandiford, cannot establish extra-territorial jurisdiction.
3. In any event, the Tribunal had no proper basis for assuming that an immunity plea would contravene customary international law or article 6. A state-immunity analysis required an assessment of whether the employment and claims arose from sovereign or governmental acts. A diplomatic-immunity analysis required consideration of the applicable Vienna Convention regime. Neither assessment had been made by the UAE court or by the Tribunal.
4. As alternative reasons, the EAT held that domestic authority did not support the proposition that immunity in the forum state, and a resulting absence of local recourse, intrinsically supplied the something more required by Lawson. Any perceived gap in protection was a matter for Parliament. The claimant was a local UAE employee, and her expectation of enforcing UAE-law rights strengthened rather than severed her connection with that jurisdiction.

• Employment Appeal Tribunal: allowed the British Council’s appeal and set aside the Employment Tribunal’s jurisdictional ruling: [2024] EAT 92.
• London Central Employment Tribunal: held that it had jurisdiction to determine claims arising from the claimant’s UAE employment; decision sent to the parties on 9 January 2023.