The European Court of Human Rights (ECtHR) has made a disappointing ruling, which fails to grapple with important questions regarding the extent to which the law of state immunity can prevent nationals from bringing proceedings against their own governments in the UK. The resulting lack of clarity has serious implications for access to justice.

Nicolas Buttet, a French national, was employed as a security guard at the French Embassy in London from 2008 to 2012. In October 2012, he was dismissed from his post without notice or pay. Mr Buttet brought unfair dismissal proceedings against the French Embassy in London. He argued that s.4(2)(a) of the State Immunity Act 1978 (which provides an immunity exemption for employment contracts entered into where the employee is a national of the state concerned at the time of the proceedings) was incompatible with his right to a fair trial and that it was discriminatory on the grounds of nationality. 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 rejected. 

Mr Buttet made an application to the ECtHR, arguing that the state immunity afforded to the French Embassy amounted to a disproportionate interference with his right to a fair trial and access to a court, and that it unlawfully discriminated against him on the basis of his nationality. The ECtHR has now handed down judgment, in which it recognises that there are important questions to be considered regarding whether s.4(2)(a) is compatible with fair trial rights. However, it has refused to grapple with those questions or provide any determination on the issues involved, on the basis that Mr Buttet has failed to provide the ECtHR with sufficient evidence to prove that he was a permanent resident in the UK at the time of the proceedings. Remarkably, this issue was never raised by the court with Mr Buttet’s legal team.

As a result, the judgment fails to clarify the protection available to workers such as Mr Buttet who argue that their employment rights have been violated by their own government.

Mr Buttet commented:

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.

Shirin Marker, solicitor at Bindmans LLP who is representing Mr Buttet, said:

In bringing his legal action, Mr Buttet sought to clarify and improve the rights of workers employed by foreign embassies in the UK. It is therefore frustrating that the ECtHR has chosen not to engage with the key issues in Mr Buttet’s claim and instead dismiss the claim on the basis of a perceived lack of factual evidence regarding his residency status.

Despite the disappointingly wide scope this judgment affords regarding state immunity, we hope that the UK government will think further about the employment protections that should be offered to employees of diplomatic missions in the UK.

Schona Jolly QC, counsel for Mr Buttet said:

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. We now hope that the United Kingdom government will take swift steps to remedy the gaps highlighted by the Supreme Court’s declaration of incompatibility made under the Human Rights Act in Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs in 2017.

Nicolas Buttet was represented at the European Court of Human Rights by John Halford and Shirin Marker of Bindmans LLP and counsel, Schona Jolly QC and Ruaraidh Fitzpatrick of Cloisters Chambers.