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Liberté, Égalité et Immunity?

Tuesday, May 10, 2022

Buttet v The United Kingdom

We’re all aware of the importance of foreign embassies falling outside local jurisdictions as a sanctuary for those seeking refuge from persecution. There’s also the sometime controversial rule applying to members of an Embassy who can claim diplomatic immunity and thereby avoid criminal prosecution. What we may not be aware of is the way other legislative measures can differ such as employment law.

The following case highlights how an embassy employee’s treatment led to a claim for unfair dismissal which ultimately failed due to the state immunity card being played.

The European Court of Human Rights (ECHR) has ruled on a matter raising questions on the extent to which state immunity can prevent nationals from bringing proceedings against their own governments in the UK.

Nicolas Buttet, a French national living in the UK was employed as a security guard by the French Embassy in London, his tenure lasted from 2008 to 2012. In October 2012, he was dismissed from his post without notice or pay. Unsurprisingly Mr Buttet brought an unfair dismissal claim against his employer. He argued that the State Immunity Act 1978 was incompatible with his right to a fair trial and that it was discriminatory on the grounds of nationality.

Frustratingly but perhaps not surprising the Employment Tribunal held that it did not have jurisdiction to hear the claim against the Embassy, on the basis of state immunity, and Mr Buttet’s claim was initially rejected.

Dissatisfied with the outcome of that initial hearing Mr Buttet made an application to the European Court of Human Rights (ECtHR), with the crux of his argument being state immunity amounted to a disproportionate interference with his right to a fair trial and access to a court. He considered that it was unreasonable and unlawful to permit the French Embassy to discriminate against him because he was French. Unfortunately, the ECtHR also refused to uphold Mr Buttet’s claim however they acknowledged the case had highlighted important questions regarding section 4(2)a of the State Immunity Act and its place in matters relating to a fair trial.

The disappointment of this acknowledgment yet failure to address it in the Court that had authority to do so was compounded by a statement from the ECtHR suggesting Mr Buttet had failed to provide sufficient evidence of his permanent residence in the UK. The point of his residence in the UK had not been raised previously nor such proof requested of his legal representatives.

Mr Buttet released a statement after the decision was handed down; “I am deeply disappointed by the judgment, which marks the end of a long ordeal for me of trying to uphold my rights under UK employment law. Whilst the court has refused to address the key issues in my case, I hope that in bringing this litigation, I have shone a light on what I consider to be unfair differential treatment between workers employed by foreign embassies and other workers. I hope that despite the judgment, the UK government will take time to reflect on this disparity.”

Counsel for Nicolas Buttet, Schona Jolly QC, added:

“It is disappointing that important questions on access to justice for foreign workers employed in the UK, including our client, have not been resolved. Although the court recognised that there was a question over the interpretation of customary international law and rights of access to justice under Articles 6 and 14, including over the extent of any nationality discrimination permitted by states against their own nationals, the court has effectively failed to deal with this substantive question.”

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