Mr K Onurcan v Malaysia PUBLIC PRELIMINARY HEARING — 2024

This was a public preliminary hearing before Employment Judge Brown to determine whether the Claimant's claims against the Malaysian High Commission were barred by state immunity under the State Immunity Act 1978. The Claimant, a Driver employed since 2001 on the Locally Recruited Staff scheme, brought complaints of breach of contract and unlawful deductions from wages arising from a reduction of his salary scale from T18 to T14 following a Malaysian Ministry of Foreign Affairs review of locally recruited staff pay.

The Tribunal found that the Claimant's functions as a driver - including driving diplomats, members of the Malaysian royal family and senior officials, conveying sealed letters between missions, and accompanying (but not personally handling) diplomatic bags - were not sufficiently close to the exercise of sovereign authority to make his employment itself a sovereign act. The Tribunal considered Article 3 of the Vienna Convention on Diplomatic Relations and concluded the Claimant's role was ancillary and supportive rather than governmental in character.

The Tribunal further held that, while any challenge to the Malaysian government's wholescale review of staff grades and pay would engage sovereign interests, a claim limited to breach of contract regarding the Claimant's individual contractual entitlement to a T18 grade does not, applying the approach in Benkharbouche. Accordingly, the breach of contract claim was held not to be barred by state immunity and was permitted to proceed to a further case management hearing.