Naming the High Commission as a party is tantamount to naming the state (Nigerian High Commission v Iheme)

Employment by a High Commission is the same as employment by that state and naming a state’s High Commission as a party in proceedings is tantamount to naming the state. That does not contravene principles of international law, is not contrary to the scheme of section 14 of the State Immunity Act 1978 (SIA 1978) (which identifies entities/persons within the definition of a state) and does not amount to a breach of Article 22 of the Vienna Convention (which states that the premises of a diplomatic mission are ‘inviolable’ and which requires the state in which the mission is based to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity), according to the Employment Appeal Tribunal (EAT).

Nigerian High Commission v Iheme (EA-2019–001945–RN)

 What are the practical implications of this judgment?

This judgment is important in a number of respects It:

• reminds us that, following Benkharbouche, in so far as claims brought against a state in an employment tribunal are within the material scope of EU law (e.g. discrimination claims), SIA 1978, ss 4(2)(b) and 16(1)(a) must be disapplied, and therefore those claims may proceed (but those outside the material scope of EU law, e.g. unfair dismissal, may not). This means that claims in the following categories may proceed:
  • claims where, at the time when the contract was made, the individual was neither a national of the UK nor habitually resident there
  • claims brought by members of a foreign mission
• confirms, following the judgment in de Castro Cerqueira, that bringing a claim against a diplomatic mission (e.g., the Nigerian High Commission) is tantamount to bringing a claim against the particular state (e.g., Nigeria), as a diplomatic mission is the manifestation in the UK of that state
• provides that this does not contravene principles of international law, is not contrary to the scheme of SIA 1978, s 14 and does not contravene Article 22(2) of the Vienna Convention (incorporated into domestic law by the Diplomatic Privileges Act 1964)
• acts as a reminder that the judgment in Benkharbouche requires an employment tribunal to consider the nature of the employment of the member of the staff of a diplomatic mission in order to assess whether their employment is a sovereign act to which state immunity applies
• also reminds us that there is a prescribed method for effective service on a state under SIA 1978, s 12(1) (which requires a claim form to be transmitted through the Foreign and Commonwealth Office to the Ministry of Foreign Affairs of the state in question).

Case details

• Court: Employment Appeal Tribunal
• Judge: Clive Sheldon QC, Deputy Judge of the High Court
• Date of judgment: 15 September 2021

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