Nigerian High Commission v Iheme: EA-2019-001045-RN
Judgment concerning an appeal made by the Nigerian High Commission against a decision which found that the Claimant was subject to discrimination due to her sex and religion and that she had been victimised, and that she should consequently receive compensation.
The Claimant lodged a claim against the Respondent, her previous employer from whom she had been dismissed, on 21 February 2014 on the basis that she had been discriminated against due to her race and religion and had been victimised, unfairly dismissed, and was due unpaid notice pay. The claims succeeded before the Employment Tribunal (ET) on 30 September 2019. The ET was satisfied that the Claimant’s discrimination claims could be based on EU law and the Respondent failed to adequately respond to these claims. Applying the decision of the Supreme Court in Benkharbouche v Secretary of State for Foreign Affairs  ICR 1327, the ET also held that states are not immune “from claims based on Article 47 of the European Charter of Fundamental Rights” and therefore the Respondent could not rely on this Article to defend itself against the Claimant’s claims. The Respondent appealed on the basis that the Federal Republic of Nigeria had not been effectively served, the claim against the Nigerian High Commission was not the same as issuing a claim against the Federal Republic of Nigeria, and that the ET had misinterpreted the decision in Benkharbouche.
The Employment Appeal Tribunal (EAT) dismissed the appeal on the grounds that the Federal Republic of Nigeria had not been effectively served and that the claim against the Nigerian High Commission was not the same as issuing a claim against the Federal Republic of Nigeria. The proceedings against the Nigerian High Commission were deemed to have been served effectively on the Federal Republic of Nigeria despite the fact that the Federal Republic was not the named Respondent, and a claim against the High Commission was “tantamount” to bringing a claim against the Federal Republic.
However, the appeal was allowed on the basis that the ET had misapplied the approach of Benkharbouche by failing to address whether the Claimant’s employment with the diplomatic mission was an isolated private act or involved an “inherently sovereign or governmental act”. The EAT remitted the case to the ET to decide this matter. In so doing, it stated that if it was decided that the Claimant’s employment was a private act, her claims that she had been subject to discrimination due to her sex and religion and that she had been victimised should be allowed and she should receive compensation amounting to £70,747.06. If it was decided that the Claimant’s employment involved an inherently sovereign or governmental act, state immunity should apply and the claims should be dismissed.
Published: 17/09/2021 08:19