On 16 July 2024 the Employment Tribunal (the Tribunal) handed down its decision on the preliminary issue of State immunity in Mrs A Muda v Malaysia, Case No 2203623/2021. Employment Judge Brown made various findings on the exercise of sovereign authority within the meaning of sections 16(1)(aa)(i) and 16(1)(aa)(ii) of the State Immunity Act 1978 (SIA 1978) and the compatibility of section 4(2)(a) SIA 1978 with Article 6 of the European Convention of Human Rights (ECHR).
The Claimant, a former social secretary at the High Commission of Malaysia in the UK, brought claims of unlawful deduction from wages against Malaysia. Malaysia defended the claim by asserting State immunity. The Tribunal held that none of the Claimant’s functions were “sufficiently close” to any of the governmental functions of the High Commission to be an exercise of sovereign authority within the meaning of section 16(1)(a)(i) SIA 1978. The Tribunal also held that, on a true construction of the Claimant’s claim, i.e. the failure to pay the Claimant at the relevant pay grade for the social secretary role to which she had been appointed in 2014, the relevant conduct which was the subject matter of the claim was the private act of the alleged breach of the contractual terms agreed between the High Commissioner and the Claimant in 2014. Accordingly, the conduct complained of was not engaged by Malaysia in the exercise of its sovereign authority, within the meaning of section 16(1)(a)(ii) SIA 1978.
The Tribunal was also required to determine whether section 4(2)(a) SIA 1978 went beyond what was required under customary international law, such that it was incompatible with Article 6 ECHR, as incorporated into UK law by section 1 of the Human Rights Act 1998 (HRA 1998); and, if it was, whether s. 4(2)(a) could be read down pursuant to section 3 HRA 1998. On its face, section 4(2)(a) SIA 1978 entitles States to immunity in relation to contracts of employment where, at the time proceedings are brought, the claimant is a national of the State concerned. The Claimant in this case is a Malaysian national but has been permanently resident in the United Kingdom since 1995.
The Tribunal held that Malaysia was unable to show that section 4(2)(a) SIA 1978, as applied to the Claimant, a locally recruited resident of the UK, was justified by a rule of customary international law and its terms appeared to be incompatible with the Claimant’s Article 6 ECHR right to a fair hearing of her civil claims. However, the Tribunal further found that it was not possible to read down section 4(2)(a) SIA 1978, so that it did not apply to individuals who are also permanent residents of the UK. As a result, Malaysia was found to be entitled to assert State immunity in respect of the claim.
Read the full judgment here.
Naomi Hart and Lorraine Aboagye appeared for the Claimant. Jessica Wells is also instructed for the Claimant. They were instructed by Louise Maynard of Kilgannon & Partners LLP.
