Our lawyers are experienced in dealing with employment litigation where issues of diplomatic and/or state immunity arise. They can work with you to ensure that you make the right strategic decisions to achieve the best possible outcome in your proceedings.

Employment litigation can be challenging and complex in ordinary circumstances. However, if a respondent potentially benefits from either diplomatic and/or state immunity this will have a significant impact on any claim and on the way in which the parties participate in legal proceedings (if they decide to participate at all). It is, therefore, extremely important that both claimants and respondents are properly advised from the moment litigation becomes a possibility so that they make informed decisions about the claim and defence.

We bring our expertise of advising on immunity-related employment claims (having acted for clients before both the Employment Tribunal and the Employment Appeal Tribunal) to give tailored, strategic advice taking account of the unique issues which affect these types of matter and giving proper consideration to key points, including the following:

1. Diplomatic or state immunity or both?

A respondent may be immune to proceedings either on the basis of diplomatic or state immunity or both. Because the law works differently in each area, it is important to be clear which ground of immunity might be relevant.

2. The identity of the respondent

It will be critical for both parties to analyse the position of the respondent and whether they have diplomatic immunity and/or are part of a state to understand whether they might be immune from a claim.

With more complex corporate structures, this may not always be immediately obvious. For example, even if a respondent isn’t a state or emanation of a state, they may still be able to claim state immunity if the proceedings relate to anything they have done in the exercise of sovereign authority. This can be a particularly difficult question to answer where the respondent is performing both a sovereign and commercial function.

3. The identity of the claimant

Even if the respondent can establish immunity, this doesn’t mean that they are immune to all employment litigation as certain exceptions to this general principle apply. It will therefore be important to consider whether a claim falls within an exception (and can therefore proceed) or whether it would still be barred on the basis of immunity. This can be the case, for example, where the claimant was exercising sovereign authority in their role.

4. Impact on litigation

Whether you are a claimant or respondent, the analysis of the immunity position will be critical to how you pursue or defend a claim. It might affect the way in which you can validly serve proceedings if you are a claimant, or how you defend the claim if you’re a respondent (noting it will be critical that you do not inadvertently submit to the jurisdiction). The rules on disclosure can be different, and respondents may not be required to search for and disclose evidence in the same way as normal Tribunal litigation – and claimants need to be aware that it is likely to be more difficult to obtain discovery of potentially relevant evidence. It might also affect whether you want to make inter-locutory applications which you might ordinarily do in “normal” employment claims, and your standing in other unrelated legal proceedings.

These are all critical issues which need to be addressed properly so as not to prejudice your position in the litigation.

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