Oliver Jackson acted successfully for Malaysia in its defence to an Employment Tribunal claim raising issues of state immunity.
The claimant was a secretary at the Malaysian High Commission in London who brought a claim of unlawful deductions of wages. She was a Malaysian citizen but had permanent residency in the UK. Her essential complaints to the Employment Tribunal were that she had been promised a promotion that had not materialized and that her pay had been altered following a pay review process.
Malaysia submitted that, because she was a Malaysian national, her claim was barred by section 4(2)(a) of the State Immunity Act 1978 (SIA).
The Claimant accepted that her claim would be blocked by the plain wording of section 4(2)(a), but argued that that provision amounted to an unjustified infringement of her right to access a court under Article 6 of the European Court of Human Rights and so had to be ‘read down’ under section 3 of the Human Rights Act 1998 (HRA).
The Employment Tribunal agreed with Malaysia that section 3 HRA could not be used in this way. To read section 4(2)(a) SIA to carve out an exception for UK permanent residents would be to adopt a meaning inconsistent with fundamental features of the legislative scheme.
The Employment Tribunal also addressed whether the Claimant’s claims should be barred because her employment functions were sufficiently close to Malaysia’s sovereign functions (section 16(1)(a)(i) SIA) or because the conduct that she complained of was an act of sovereign authority (section 16(1)(a)(ii) SIA).
The judgment will be of interest to all state immunity practitioners. A copy can be found here.
Oliver Jackson of 11KBW appeared successfully for Malaysia, instructed by Chris Braganza and Fiona Hunt of Sheridans.
Leo Davidson acted for the Claimant instructed by Louise Maynard of Kilgannon & Partners LLP at an earlier stage of the proceedings.
