“ 4 Contracts of employment.E+W+S+N.I. (1) A State is not immune as respects proceedings relating to a contract of employment between the State and an individual where the contract was made in the United Kingdom or the work is to be wholly or partly performed there. (2) Subject to subsections (3) and (4) below, this section does not apply if— (a) at the time when the proceedings are brought the individual is a national of the State concerned; or (b) at the time when the contract was made the individual was neither a national of the United Kingdom nor habitually resident there; or (c). the parties to the contract have otherwise agreed in writing. (3) Where the work is for an office, agency or establishment maintained by the State in the United Kingdom for commercial purposes, subsection (2)(a) and (b) above do not exclude the application of this section unless the individual was, at the time when the contract was made, habitually resident in that State. (4) Subsection (2)(c) above does not exclude the application of this section where the law of the United Kingdom requires the proceedings to be brought before a court of the United Kingdom. … (6) In this section “proceedings relating to a contract of employment” includes proceedings between the parties to such a contract in respect of any statutory rights or duties to which they are entitled or subject as employer or employee.”
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
“At first sight this may appear to be inconsistent with a doctrine of comprehensive and unqualified state immunity in those cases where it is applicable. But in fact there is no inconsistency. This is not because the right guaranteed by article 6 is not absolute but subject to limitations, nor is it because the doctrine of state immunity serves a legitimate aim. It is because article 6 forbids a contracting state from denying individuals the benefit of its powers of adjudication; it does not extend the scope of those powers. Article 6 requires contracting states to maintain fair and public judicial processes and forbids them to deny individuals access to those processes for the determination of their civil rights. It presupposes that the contracting states have the powers of adjudication necessary to resolve the issues in dispute. But it does not confer on contracting states adjudicative powers which they do not possess. State immunity, as I have explained, is a creature of customary international law and derives from the equality of sovereign states. It is not a self-imposed restriction on the jurisdiction of its courts which the United Kingdom has chosen to adopt. It is a limitation imposed from without upon the sovereignty of the United Kingdom itself. The immunity in question in the present case belongs to the United States. The United States has not waived its immunity. It is not a party to the Convention. The Convention derives its binding force from the consent of the contracting states. The United Kingdom cannot, by its own act of acceding to the Convention and without the consent of the United States, obtain a power of adjudication over the United States which international law denies it.”
“First, [the claimants] must show thatarticle 6 of the Convention is engaged by the grant of immunity to the Kingdom on behalf of itself and the individual defendants. In this task they derive great help from Al-Adsani v United Kingdom(2001) 34 EHRR 273 where, in a narrowly split decision of the Grand Chamber, all judges of the European Court of Human Rights held article 6 to be engaged. I must confess to some difficulty in accepting this. Based on the old principle par in parem non habet imperium, the rule of international law is not that a state should not exercise over another state a jurisdiction which it has but that (save in cases recognised by international law) a state has no jurisdiction over another state. I do not understand how a state can be said to deny access to its court if it has no access to give. This was the opinion expressed by Lord Millett in Holland v Lampen-Wolfe[2000] 1 WLR 1573 , 1588, and it seems to me persuasive. I shall, however, assume hereafter that article 6 is engaged, as the European Court held.” and Lord Hoffmann (at [64]): “On the question of whether article 6 is engaged at all, I am inclined to agree with the view of Lord Millett in Holland v Lampen-Wolfe[2000] 1 WLR 1573 , 1588 that there is not even a prima facie breach of article 6 if a state fails to make available a jurisdiction which it does not possess. State immunity is not, as Lord Millett said, a "self-imposed restriction on the jurisdiction of [the] courts" but a "limitation imposed from without". However, as the European Court of Human Rights in Al-Adsani 34 EHRR 273 proceeded on the assumption that article 6 was engaged and the rules of state immunity needed to be justified and as it makes no difference to the outcome, I will not insist on the point.”
“190. The Court has examined compliance with the right of access to a court enshrined in Article 6 § 1 in the context of the grant of State immunity in a number of different civil claims, including disputes concerning: employment at embassies (Fogarty, Cudak and Sabeh El Leil, all cited above); personal injury incurred in the forum State (McElhinney, cited above); personal injury incurred as a result of torture abroad (Al-Adsani, cited above); crimes against humanity carried out in wartime (Kalogeropoulouand Others, cited above); service of process (Wallishauser, cited above); and complaints of an allegedly private-law nature (Oleynikov v. Russia, no. 36703/04,14 March 2013 ). Each of these cases concerned the extent to which the former absolute notion of State immunity had given way to a more restrictive form of immunity. In particular, the Court examined whether the respondent State’s actions “[fell] outside any currently accepted international standards” (Fogarty, cited above, § 37; and McElhinney, cited above, § 38); were “inconsistent with [the] limitations generally accepted by the community of nations as part of the doctrine of State immunity” (Al-Adsani, cited above, § 66; and, by implication, Kalogeropoulou and Others, cited above); or were potentially contrary to an exception to State immunity established by a rule of customary international law that applied (Cudak, cited above, § 67; Sabeh El Leil, cited above, § 58; Wallishauser, cited above, § 69; and Oleynikov, cited above, § 68).”
“37. The Court observes that, on the material before it (see paragraphs 16-20, 29 and 31 above), there appears to be a trend in international and comparative law towards limiting State immunity in respect of employment-related disputes. However, where the proceedings relate to employment in a foreign mission or embassy, international practice is divided on the question whether State immunity continues to apply and, if it does so apply, whether it covers disputes relating to the contracts of all staff or only more senior members of the mission. Certainly, it cannot be said that the UnitedKingdom is alone in holding that immunity attaches to suits by employees at diplomatic missions or that, in affording such immunity, the UnitedKingdom falls outside any currently accepted international standards. 38. The Court further observes that the proceedings which the applicant wished to bring did not concern the contractual rights of a current embassy employee, but instead related to alleged discrimination in the recruitment process. Questions relating to the recruitment of staff to missions and embassies may by their very nature involve sensitive and confidential issues, related, inter alia, to the diplomatic and organisational policy of a foreign State. The Court is not aware of any trend in international law towards a relaxation of the rule of State immunity as regards issues of recruitment to foreign missions. In this respect, the Court notes that it appears clearly from the materials referred to above (see paragraph 19) that the International Law Commission did not intend to exclude the application of State immunity where the subject of proceedings was recruitment, including recruitment to a diplomatic mission. 39. In these circumstances, the Court considers that, in conferring immunity on the United States in the present case by virtue of the provisions of the 1978 Act, the UnitedKingdom cannot be said to have exceeded the margin of appreciation allowed to States in limiting an individual’s access to court.”
“63. The Court found, already in the Fogarty judgment, that there was a trend in international and comparative law towards limiting State immunity in respect of employment-related disputes, with the exception, however, of those concerning the recruitment of staff in embassies (§§ 37-38). 64. In this connection, the Court notes that the application of absolute State immunity has, for many years, clearly been eroded. In 1979 the International Law Commission (ILC) was given the task of codifying and gradually developing international law in the area of jurisdictional immunities of States and their property. It produced a number of drafts that were submitted to States for comment. The Draft Articles it adopted in 1991 included one – Article 11 – on contracts of employment (see paragraph 28 above). In 2004 the United Nations General Assembly adopted the Convention on Jurisdictional Immunities of States and their Property (see paragraph 30 above). 65. The 1991 Draft Articles, on which the 2004 United Nations Convention (and Article 11 in particular) was based, created a significant exception in matters of State immunity by, in principle, removing from the application of the immunity rule a State’s employment contracts with the staff of its diplomatic missions abroad. However, that exception was itself subject to exceptions whereby, in substance, immunity still applied to diplomatic and consular staff in cases where: the subject of the dispute was the recruitment, renewal of employment or reinstatement of an individual; the employee was a national of the employer State; or, lastly, the employer State and the employee had otherwise agreed in writing. 66. The report appended to the 1991 Draft Articles stated that the rules formulated in Article 11 appeared to be consistent with the emerging trend in the legislative and treaty practice of a growing number of States (ILC Yearbook, 1991, Vol. II, Part 2, p. 44, paragraph 14). This must also hold true for the 2004 United Nations Convention. Furthermore, it is a well-established principle of international law that, even if a State has not ratified a treaty, it may be bound by one of its provisions in so far as that provision reflects customary international law, either “codifying” it or forming a new customary rule (see the judgment of the International Court of Justice in the North Sea Continental Shelf cases, ICJ Reports 1969, p. 41, § 71). Moreover, there were no particular objections by States to the wording of Article 11 of the ILC’s Draft Articles, at least not by the respondent State. As to the 2004 United Nations Convention, Lithuania has admittedly not ratified it but did not vote against its adoption either. 67. Consequently, it is possible to affirm that Article 11 of the ILC’s 1991 Draft Articles, on which the 2004 United Nations Convention was based, applies to the respondent State under customary international law. The Court must take this into consideration in examining whether the right of access to a court, within the meaning of Article 6 § 1, was respected.”
“53. In addition, the impugned restriction must also be proportionate to the aim pursued. In this connection, the Court observes that the application of absolute State immunity has, for many years, clearly been eroded, in particular with the adoption of the Convention on Jurisdictional Immunities of States and their Property by the United Nations General Assembly in 2004 (see Cudak, cited above, § 64). This convention is based on Draft Articles adopted in 1991, of which Article 11 concerned contracts of employment and created a significant exception in matters of State immunity, the principle being that the immunity rule does not apply to a State’s employment contracts with the staff of its diplomatic missions abroad, except in the situations that are exhaustively enumerated in paragraph 2 of Article 11 (ibid., § 65). 54. Furthermore, it is a well-established principle of international law that a treaty provision may, in addition to the obligations it creates for the Contracting Parties, also be binding on States that have not ratified it in so far as that provision reflects customary international law, either “codifying” it or forming a new customary rule (ibid., § 66). Consequently, Article 11 of the International Law Commission’s 1991 Draft Articles, as now enshrined in the 2004 Convention, applies under customary international law, even if the State in question has not ratified that convention, provided it has not opposed it either (ibid., §§ 66-67).”
“57. As the Court has pointed out (see paragraph 54 above), Article 11 of the International Law Commission’s 1991 Draft Articles, as now enshrined in the 2004 Convention, applies under customary international law, even if the State in question has not ratified that convention, provided it has not opposed it either (see Cudak, cited above, §§ 66-67). For its part, France has not ratified it but has not opposed it: on the contrary, it signed the convention on17 January 2007 and the ratification procedure is currently pending before the French Parliament (see paragraph 22 above). 58. Consequently, it is possible to affirm that the provisions of the 2004 Convention apply to the respondent State, under customary international law (see Cudak, cited above, § 67), and the Court must take this into consideration in examining whether the right of access to a court, within the meaning of Article 6 § 1, was respected.”
“In our judgment, in seeking to decide whether the claim in this case is excluded by the doctrine of sovereign immunity, we must ask the following questions: (a) Was the contract of a kind which a private individual could enter into? (b) Did the performance of the contract involve the participation of both parties in the public functions of the foreign state, or was it purely collateral to such functions? (c) What was the nature of the breach of contract or other act of the sovereign state giving rise to the proceedings? (d) Will the investigation of the claim by the tribunal involve an investigation into the public or sovereign acts of the foreign state? If we have asked ourselves the right questions, then in our judgment the necessary result must be that there is no jurisdiction to entertain the applicant’s claim. It is true that any private individual can employ another, i.e. can enter into a contract of employment. Therefore in that sense the entry into a contract of employment is a private act. But when one looks to see what is involved in the performance of the applicant’s contract, it is clear that the performance of the contract is part of the discharge by the foreign state of its sovereign functions in which the applicant himself, at however lowly a level, is under the terms of his contract of employment necessarily engaged. One of the classic forms of sovereign acts by a foreign state is the representation of that state in a receiving state. From the doctrine of sovereign immunity were derived the concepts that the embassy premises were part of the soil of the foreign sovereign state and that diplomatic staff are personally immune from local jurisdiction. A contract to work at a diplomatic mission in the work of that mission is a contract to participate in the public acts of the foreign sovereign. The dismissal of the applicant was an act done in pursuance of that public function, i.e. the running of the mission. As a consequence, the fairness of any dismissal from such employment is very likely to involve an investigation by the industrial tribunal into the internal management of the diplomatic representation in the United Kingdom of the Republic of India, an investigation wholly inconsistent with the dignity of the foreign state and an interference with its sovereign functions. We therefore conclude that, in general, there is no jurisdiction to entertain a claim for unfair dismissal from employment by, and in, a diplomatic mission.”
“Article 5 1. A Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State if the proceedings relate to a contract of employment between the State and an individual where the work has to be performed on the territory of the State of the forum. 2. Paragraph 1 shall not apply where: (a) the individual is a national of the employing State at the time when the proceedings are brought; (b) at the time when the contract was entered into the individual was neither a national of the State of the forum nor habitually resident in that State; or (c) the parties to the contract have otherwise agreed in writing, unless, in accordance with the law of the State of the forum, the courts of that State have exclusive jurisdiction by reason of the subject-matter. 3. Where the work is done for an office, agency or other establishment referred to in Article 7, paragraphs 2.a and b of the present article apply only if, at the time the contract was entered into, the individual had his habitual residence in the Contracting State which employs him. … Article 15 A Contracting State shall be entitled to immunity from the jurisdiction of the courts of another Contracting State if the proceedings do not fall within Articles 1 to 14; the court shall decline to entertain such proceedings even if the State does not appear. … Article 32 Nothing in the present Convention shall affect privileges and immunities relating to the exercise of the functions of diplomatic missions and consular posts and of persons connected with them.” (a) the individual is a national of the employing State at the time when the proceedings are brought; (b) at the time when the contract was entered into the individual was neither a national of the State of the forum nor habitually resident in that State; or (c) the parties to the contract have otherwise agreed in writing, unless, in accordance with the law of the State of the forum, the courts of that State have exclusive jurisdiction by reason of the subject-matter. … Article 15 A Contracting State shall be entitled to immunity from the jurisdiction of the courts of another Contracting State if the proceedings do not fall within Articles 1 to 14; the court shall decline to entertain such proceedings even if the State does not appear. … Article 32 Nothing in the present Convention shall affect privileges and immunities relating to the exercise of the functions of diplomatic missions and consular posts and of persons connected with them.”
“Article 11 Contracts of employment 1. Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to a contract of employment between the State and an individual for work performed or to be performed, in whole or in part, in the territory of that other State. Contracts of employment 2. Paragraph 1 does not apply if: (a) the employee has been recruited to perform particular functions in the exercise of governmental authority; (b) the employee is: (i) a diplomatic agent, as defined in the Vienna Convention on Diplomatic Relations of 1961; (ii) a consular officer, as defined in the Vienna Convention on Consular Relations of 1963; (iii) a member of the diplomatic staff of a permanent mission to an international organization or of a special mission, or is recruited to represent a State at an international conference; or (iv) any other person enjoying diplomatic immunity; (c) the subject-matter of the proceeding is the recruitment, renewal of employment or reinstatement of an individual; (d) the subject-matter of the proceeding is the dismissal or termination of employment of an individual and, as determined by the head of State, the head of Government or the Minister for Foreign Affairs of the employer State, such a proceeding would interfere with the security interests of that State; (e) the employee is a national of the employer State at the time when the proceeding is instituted, unless this person has the permanent residence in the State of the forum; or (f) the employer State and the employee have otherwise agreed in writing, subject to any considerations of public policy conferring on the courts of the State of the forum exclusive jurisdiction by reason of the subject-matter of the proceeding.”
“Article 3 Privileges and immunities not affected by the present Convention 1. The present Convention is without prejudice to the privileges and immunities enjoyed by a State under international law in relation to the exercise of the functions of (a) its diplomatic missions, consular posts, special missions, missions to international organizations or delegations to organ of international organizations or to international conferences; and (b) persons connected with them.”
“… [U]nder article 38 of the 1961 Vienna Convention on Diplomatic Relations and article 71 of the 1963 Vienna Convention on Consular Relations, the receiving State has a duty to exercise its jurisdiction in such a manner as not to interfere unduly with the performance of the functions of the mission or the consular post.”
“Returning to the State as an employer, national approaches are very varied and national courts sometimes give preference to the nature of the functions performed, sometimes the purpose of those functions and sometimes the nature of the contract. In some cases these criteria have to be satisfied cumulatively for immunity to be waived. Furthermore, the issue of immunity may be seen differently depending on whether the dispute concerns recruitment, dismissal or the actual performance of functions.”
“Cleaners and others engaged to maintain the physical fabric may be able to make such a claim depending on whether their work brings them into a sufficient association with the sovereign functioning of the office … Domestic staff, who are often in a position of trust and confidence, may find it harder to establish a sufficient separation. And those employed in administrative or clerical support of the sovereign functions of the embassy or agency will clearly have difficulty in establishing that they were sufficiently distant from the exercise of governmental authority that litigation in the host country would not involve any intrusion on its domain.”
“It is notable that the provision fails to take account of the different nature of the employment within an embassy or consulate, in particular the degree of proximity to, or involvement with, uniquely “sovereign” activities. … Under the Act a mission employee’s claim against a foreign State is dismissed perfunctorily without any regard for the circumstances of the claim or whether an action may even be brought in the courts of the foreign State itself. The consequence is that a foreign State employer is in a disproportionately privileged legal position compared to other defendants in UK litigation. Such a rule may of course be more defensible if it were an implementation of principles of public international law. However, … it seems that the UK position is the harshest in the developed world as far as embassy and consulate employees are concerned and is therefore likely inconsistent with the international law standard.”
“Accordingly, the issue of State immunity from legal proceedings must be settled before considering the Brussels Convention since, if proceedings cannot be brought, the determination of which court can hear the action is immaterial. In addition, it is not within the powers of the Court of Justice to examine whether there is State immunity in the present case and its implications with regard to human rights.”
“… A distinction has been drawn between contracts of employment and other contracts (Article 4) because in certain circumstances it may be justifiable to accord immunity to a defendant State under a contract of employment particularly when the employee is a national of the employing State (see paragraph 2, sub-paragraph (a)). The same is true when the employee is a national neither of the State for whom he works, nor of the State where he works, and where the contract of employment was not concluded on the territory of the latter State namely where the employee is a foreign worker who has not been locally recruited (see paragraph 2, sub-paragraph (b)). In both cases the links between the employee and the employing State (in whose courts the employee may always bring proceedings) are generally closer than those between the employee and the State of the forum.”
“Article 11 Contracts of employment Contracts of employment 1. Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to a contract of employment between the State and an individual for work performed or to be performed in whole or in part, in the territory of that other State. 2. Paragraph 1 does not apply if: … (c) the employee was neither a national nor a habitual resident of the State of the forum at the time when the contract of employment was concluded; (d) the employee is a national of the employer State at the time when the proceeding is instituted; …”
“(4) … The basis for jurisdiction is distinctly and unmistakably the closeness of territorial connection between the contracts of employment and the State of the forum, namely performance of work in the territory of the State of the forum, as well as the nationality or habitual residence of the employees. Indeed, local staff working, for example, in a foreign embassy would have no realistic way to present a claim other than in a court of the State of the forum. Article 11, in this respect, provides an important guarantee to protect their legal rights. … (5) Article 11 therefore endeavours to maintain a delicate balance between the competing interests of the employer State with regard to the application of its law and overriding interests of the State of the forum for the application of its labour law and, in certain exceptional cases, also in retaining exclusive jurisdiction over the subject-matter of a proceeding.”
“(11) Paragraph 2(c) also favours the application of State immunity where the employee was neither a national nor a habitual resident of the State of the forum, the material time for either of these requirements being set at the conclusion of the contract of employment. If a different time were to be adopted, for instance the time when the proceeding is initiated, further complications would arise as there could be incentives to change nationality or to establish habitual or permanent residence in the State of the forum thereby unjustly limiting the immunity of the employer State. The protection of the State of the forum is confined essentially to the local labour force, comprising nationals of the State of the forum and non-nationals, who habitually reside in that State. Without the link of nationality or habitual residence, the State of the forum lacks the essential ground for claiming priority for the exercise of its applicable labour law and jurisdiction in the face of a foreign employer State, in spite of the territorial connection in respect of place of recruitment of the employee and place of performance of services under the contract.”
“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”
“Article 47. Right to an effective remedy and to a fair trial Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article…”
“[I]n its initial incarnation the Charter had persuasive value: the CJEU referred to and was guided by it: see, for instance, the Promusicae case [2008] All ER (EC) 809, paras 61–70.”
“14. As the Court observed in particular in Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, paragraph 18, and in Case 222/86 UNECTEF v Heylens [1987] ECR 4097, paragraph 14, the requirement of judicial control of any decision of a national authority reflects a general principle of Community law stemming from the constitutional traditions common to the Member States and has been enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.”