The British Council v Ana-Maria Beldica

The Employment Appeal Tribunal allowed the respondent's appeal against the Employment Tribunal's ruling that it had jurisdiction to hear claims brought by a UAE-based employee of the British Council under the Employment Rights Act 1996 and the Equality Act 2010. The ET had based jurisdiction on a counterfactual finding that the employer would have pleaded diplomatic or state immunity in UAE proceedings and that such a plea would amount to an act by a diplomatic agent engaging extra-territorial application of the ECHR and the Human Rights Act 1998, thereby severing the territorial pull of the employee's place of work. The EAT held that the ET's decision was unsound for two principal reasons: (i) there was no factual finding of any act or omission by the employer amounting to exertion of authority or control by UK agents (the ET relied on counterfactual reasoning which is insufficient to attract Article 1 ECHR jurisdiction in the diplomatic/consular gateway); and (ii) the ET impermissibly assumed that any plea of immunity would be contrary to customary international law (restrictive state immunity) or outside the Vienna Convention on Diplomatic Relations regime without carrying out the necessary factual and legal assessment.

This was an appeal from a preliminary Employment Tribunal decision that it had jurisdiction to determine claims brought in Great Britain by a Romanian national who had worked exclusively in Dubai as a local employee of the British Council. The claimant had lodged ET claims for unfair dismissal, pregnancy/maternity discrimination and redundancy pay after being unable to progress a complaint in UAE labour courts because her contract had not been registered with the UAE ministry that administers private-sector labour complaints. The ET found the claimant to be a "truly expatriate" local employee but went on a counterfactual analysis and concluded that, if she had brought proceedings in the UAE, the employer would have pleaded diplomatic or state immunity, that such a plea would have succeeded, and that the act of claiming immunity would amount to an act of a diplomatic agent sufficient to engage the extra-territorial reach of Article 1 ECHR and thus to engage Article 6 and the Human Rights Act 1998; on that basis the ET concluded it could, by reading legislation compatibly with Convention rights under section 3 HRA, find jurisdiction under the Employment Rights Act 1996.

The EAT considered the issues to be (i) whether a hypothetical plea of immunity, or the mere possession of a power to plead or to waive immunity, can itself constitute the exercise of authority and control by state agents so as to engage extra-territorial ECHR jurisdiction under the "diplomatic and consular agents" gateway; and (ii) whether the ET was entitled to assume that a plea of immunity would be incompatible with customary international law or the Vienna Convention and therefore contrary to Article 6 ECHR. The EAT concluded (a) that the ET's reliance on a counterfactual plea of immunity was insufficient because there was no factual finding of an act or omission amounting to authority or control by UK agents over the claimant; (b) even if a plea had been made, that would be a procedural contention before the UAE courts and would not in itself amount to an exercise of UK state authority or control under Article 1 ECHR; and (c) the ET had no basis to assume that any plea of immunity would be contrary to customary international law (restrictive immunity) or the Vienna Convention without carrying out the factual assessment required to determine whether the employment concerned acts jure imperii or jure gestionis. The EAT set aside the ET's jurisdictional decision.

Appeal allowed. The Employment Tribunal erred by relying on counterfactual reasoning that an unasserted plea of diplomatic or state immunity would constitute an exercise of authority or control sufficient to engage extra-territorial ECHR jurisdiction, and by assuming without the necessary factual assessment that any plea of immunity would be contrary to customary international law or outside the Vienna Convention exceptions; the ET's decision on jurisdiction was therefore set aside.

Appeal from the London Central Employment Tribunal (Employment Judge Klimov) whose decision (sent to the parties on 9 January 2023) had held the ET had jurisdiction to hear the claimant's UAE-based employment claims; appealed to the Employment Appeal Tribunal [2024] EAT 92 (this judgment).