Mr E Wojciechowski, Solicitor For v Respondent — 2019

At the preliminary hearing on 10, 11 April and 29 May 2019, Employment Judge Walker considered whether VisitDenmark could rely on state immunity to prevent Mr Kahn's claims proceeding in the Employment Tribunal. The Tribunal rejected the Respondent's state immunity argument and held that it had jurisdiction to consider the Claimant's claims.

The Tribunal found that VisitDenmark was a separate entity, but that the proceedings did not relate to anything done by it in the exercise of sovereign authority within section 14(2) of the State Immunity Act 1978. It accepted that VisitDenmark was closely supervised by the Danish Ministry and carried out work promoting Denmark as a tourist destination, but held that those activities were not acts that only a state could do and were not inherently governmental. The Tribunal also noted that the 2010 VisitDenmark Act had removed regulatory and governmental functions and transferred them back to the Ministry.

If wrong on section 14(2), the Tribunal went on to consider the employment exception in section 4 of the 1978 Act. It held, on the material before it, that the Third Contract dated 29 October 2001 replaced the earlier contracts and was the relevant contract for section 4(2)(b); because Mr Kahn was habitually resident in the United Kingdom when that contract was made, that exception did not reinstate immunity. The Tribunal further held that the Copenhagen City Court clause in clause 20 did not amount to a sufficiently clear written agreement under section 4(2)(c) to reinstate immunity.

The Tribunal also said that section 4(4) might be relevant to the unfair dismissal and age discrimination claims, because those claims are brought under UK statutory employment legislation, but it had no expert evidence on whether they could be pursued in Denmark. A similar point arose under the human rights/access to court argument derived from Benkharbouche, which the Tribunal did not finally decide on the evidence before it. The case was to be listed for a further preliminary hearing for case management directions.