In DLA Piper’s case of the week, the Employment Appeal Tribunal (EAT) held that two domestic workers employed in the UK by embassies could proceed with their employment claims.
Benkharbouche v Embassy of the Republic of Sudan; Janah v Libya
This is an EAT case in which two domestic workers employed in the UK by a foreign diplomatic mission brought employment claims against the Libyan and Sudanese embassies in London respectively. The EAT found that the claims could proceed, despite the doctrine of state immunity set down in UK legislation under the State Immunity Act 1978. The decision will be relevant to UK and foreign embassy employers that employ missions and diplomats, as it exposes them to the risk of employment claims being raised in UK tribunals from locally employed workers.
The doctrine of state immunity concerns the protection of a state from having legal proceedings raised against it in the courts of another state. The doctrine is incorporated into UK law by the State Immunity Act 1978 and means that, in general, embassies have been immune from the jurisdiction of UK courts and tribunals.
Ms Benkharbouche, a Moroccan cook at the Sudanese embassy, claimed holiday pay and a breach of the Working Times Regulations 1998. Ms Janah, a Moroccan domestic worker at the Libyan embassy, brought claims of race discrimination and harassment, in addition to claims under the Working Time Regulations. Sudan and Libya both asserted state immunity.
The claimants argued that:
- the State Immunity Act 1978 prevents them from asserting their right to a fair trial under art.6 of the European Convention on Human Rights;
- s.3 of the Human Rights Act 1998 provided that domestic legislation should be compatible with the European Convention on Human Rights, and therefore the State Immunity Act 1978 should be read as allowing the claims to proceed; and
- the Charter of Fundamental Rights of the European Union gave the right to an effective remedy and a fair trial, and this right must override the doctrine of state immunity set down by the State Immunity Act 1978.
In the employment tribunals, it was found that the claims were barred by the State Immunity Act 1978. The claimants appealed to the EAT.
The EAT allowed the appeal. The EAT noted that, for many years, there has been a gradual trend in international law towards limited state immunity in employment-related disputes. In particular, the EAT noted that:
- the right to a fair trial under art.6 was breached by the employment tribunals by allowing Libya and Sudan to assert state immunity in relation to the claims;
- it is not possible to read the State Immunity Act 1978 under s.3 of the Human Rights Act 1998 to make it compliant with the European Convention on Human Rights; and
- the State Immunity Act 1978 therefore conflicts with the Charter of Fundamental Rights of the European Union (which has direct effect in UK law) and should be disapplied in relation to the claims that are within the material scope of EU law.
The EAT found that the Working Time Regulations 1998 and race claims fall within the ambit of EU law and, for these, the State Immunity Act 1978 should be disapplied. In terms of the claims that were raised under UK domestic law (for example, the minimum wage claims), the remedy is to appeal to the Court of Appeal to seek a declaration of incompatibility under s.4 of the Human Rights Act 1998.
The EAT granted permission for the case to be appealed, finding that the matter would benefit from the consideration of a higher court.
This case highlights a conflict between the provisions of an internationally agreed treaty that has direct effect in national law and an EU principle that is agreed by member states. The EAT’s conclusion that the Charter of Fundamental Rights of the European Union requires the State Immunity Act 1978 to be disapplied for claims raised under EU directives, in circumstances in which the Human Rights Act 1998 could not be used to read the State Immunity Act 1978 in such a way, is likely to have wider significance.
In view of the far-reaching consequences of this decision and until further guidance from the Court of Appeal has been provided, embassies and individual diplomats should ensure that they comply with UK employment law when dealing with domestic staff. Employment claims arising from diplomatic incidents should be carefully managed to mitigate risk and employers need to be clear on their duties to the UK tribunals.
Paul Brown is a senior associate at DLA Piper
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