Legal Newsletter: Important development in case law regarding employment at embassies and the embassy’s right to claim immunity in employment lawsuits.

Background:

An employee at X Embassy (the “Embassy”) filed a lawsuit based on the fact that his temporary employment contract with the Embassy was not renewed. Represented by his union; LO, he claimed that the temporary employment contract was not legal, and that the non-renewal should be considered as an unlawful termination pursuant to the Norwegian Working Environment Act.

The Embassy’s primary response to the commencement of proceedings suit was to claim immunity for the claims put forward by the employee. The legal basis for the Embassy’s position was international law principles and the UN Convention on Jurisdictional Immunities of States and Their Property of 2^nd December 2004 (the “2004 Convention”).

The legal issues and the decision of the Supreme Court:

The Embassy won the matter regarding immunity in both the Oslo City Court and the Borgarting Appeal Court before a final decision from the Supreme Court gave the same result.

Based on recognized international law principles (as codified in the 2004 Convention) the main rule is that nations (via their embassies) have immunity against lawsuits in the local jurisdiction. However, there is an exception for lawsuits concerning employment at embassies as such lawsuits would generally be permitted.   

From this staring point there is, however, an exception that applies to for employees who have “been recruited to perform particular functions in the exercise of governmental authority “. Lawsuits concerning such positions would not be permitted before the local courts.

Accordingly, the main question in the case with X Embassy in Norway was whether the employee in question held such position or not.

The employee had a position as “Researcher and Analyst” with a focus on “obtaining information, including carrying out investigations, preparing analyzes and reporting findings and analyzes back to his employer [the Embassy]”.

Viewed against this background the Supreme Court stated the following:

In the same way as the Court of Appeal, the [Supreme Court] sees it as tasks that fall under the term "governmental authority", as used in the UN Convention, Article 11 no. 2 letter a. These are tasks that lie at the core of the business which is normally carried out at an embassy. These are tasks which, as the  [Supreme Court] understands, will in many cases be carried out by personnel with diplomatic status.

[The Employee’s] work thus clearly differs from more administrative and technical tasks, which according to the understanding of the convention which follows, among other things, from the ECtHR's practice, lie outside the "public exercise of authority". Like the Court of Appeal, the [Supreme Court] sees that "exercise of authority" in this context cannot be limited to activities that involve making decisions.

Accordingly, the Supreme Court concluded that the Embassy could claim immunity and the case was dismissed from the Norwegian Courts.

Regarding administrative positions there are examples in Norwegian case law as well as a number of cases from other European jurisdictions. Consistently such positions are not covered by the abovementioned exception from immunity from employment lawsuits and, as such, these suits are normally permitted before the national courts.

Take aways:

Although our impression is that most embassies follow Norwegian employment law when it comes to termination of employment, embassies should be aware that they do not necessarily have to meet in court regarding the validity of terminations if a lawsuit is received. The contentious issue is whether the position deals with tasks which are specific for the foreign policy functions of embassies and governments, compared to more generic administrative and technical support functions which are common for most private and public businesses and administrations.   

Employment agreements and termination letters used at embassies should take this in consideration when drafted.

For any questions regarding the legal aspects in this matter, or any other matter regarding employment law at embassies in Norway, please do not hesitate to contact SANDS law firm. The attorney in charge of the lawsuit mentioned above, and head of our employment law department, is Per Ragnar Bronken.