The claimant was employed by the respondent in the United Arab Emirates as a local employee. When seeking to pursue employment claims against the respondent in the UAE, the claimant had been unable to do so, and she had lodged claims before the Employment Tribunal (“ET”) in Great Britain. In holding that the territorial pull of the claimant’s place of work in the UAE had been severed, the ET proceeded on the assumption that, in any proceedings in the UAE, the respondent would have successfully relied on a plea of immunity, in breach of customary international law. In relying on such a plea of immunity in the UAE, the ET further considered that the respondent would have been acting as a diplomatic agent such as to extend the territorial reach of the European Convention of Human Rights and, therefore, the Human Rights Act 1998. In those circumstances, the ET concluded that it was bound to construe the relevant statutes in such a way as to respect the claimant’s right to court under article 6 ECHR and, therefore, to find that it had jurisdiction to hear her claims. The respondent appealed.

Held: allowing the appeal

As a matter of fact, there had been no act or omission on the part of the respondent such as to amount to an act of a diplomatic agent (the ET’s decision was based on an exercise of counterfactual reasoning), but, even if the respondent had entered a plea of immunity/declined to waive immunity in any UAE proceedings brought by the claimant, that would still not give rise to a relevant act of authority or control so as to establish an extra-territorial jurisdiction under the ECHR; as such the ET’s decision could not stand.

In the alternative, the ET’s decision assumed that the acceptance of a plea of (diplomatic or state) immunity would be in breach of international law, but there had been no relevant assessment (whether by the UAE courts or by the ET itself) as to whether the claimant’s employment might amount to an exercise of sovereign authority, and thus no basis for the assumption underpinning the ET’s reasoning. More generally, the relevant case-law did not support the ET’s suggestion that domestic and customary international law anticipates (“in spirit if not in letter”) that a plea of immunity must not result in a lack of recourse for the employee in the employer’s home state; as had been held in Bryant v Foreign and Commonwealth Office [2003] UKEAT 174/02; Hottak v Secretary of State for Foreign and Commonwealth Affairs [2016] ICR 975 CA; Hamam v British Embassy [2020] IRLR 570 EAT; and Rajabov v Foreign and Commonwealth Office [2022] EAT 112, such an outcome did not intrinsically establish the “something more” required in Lawson v Serco [2006] UKHL3; [2006] ICR 250.

[Summary reproduced from the EAT judgment]