In DLA Piper’s latest case report, the Court of Appeal considered whether or not European law requires the provisions of the State Immunity Act 1978 to be set aside to allow individuals employed in the UK by foreign diplomatic missions to assert various employment rights.
Benkharbouche and another v Embassy of the Republic of Sudan
State immunity, embassies and employment law
Ms Benkharbouche was a cook employed in the UK Sudanese embassy and Ms Janah was a member of domestic staff at the UK Libyan embassy.
Both brought various employment tribunal claims (including for unfair dismissal, discrimination, unpaid wages and holiday pay) against their former employers.
The judgment is long and complex, but is an excellent example of judges balancing the competing tenets of European, international and domestic laws.
The employment tribunal held that, on a strict reading of the relevant provisions of the State Immunity Act 1978, the states in question had diplomatic immunity and the claimants were unable to proceed with their claims.
On appeal, the EAT reversed this decision, finding that the relevant provisions of the State Immunity Act 1978 breached the rights to a fair trial and an effective remedy contained in both the European Convention on Human Rights and the Charter of Fundamental Rights.
The Court of Appeal considered the provisions of the State Immunity Act 1978 and the generally recognised rules of international law.
State immunity and European Convention on Human Rights
The Court of Appeal noted that there is an obvious tension between the State Immunity Act 1978 and article 6 (right to a fair and public hearing) of the European Convention on Human Rights.
The Court of Appeal said that the right to a fair trial is not absolute and may be subject to limitation by a state. On this basis, the UK could apply the doctrine of state immunity. However, to be compatible with the European Convention on Human Rights, the doctrine would need to be in pursuit of a legitimate aim and a reasonably proportionate means of achieving that aim.
The Court of Appeal considered the purpose of state immunity. The basic principle of international law is that one state cannot be subject to the laws and jurisdiction of another. This will be the case insofar as the acts of that state are of a governmental or public nature, and are not acts of a private commercial nature. It was held that the State Immunity Act 1978 was enacted to grant immunity to sovereign states operating on UK soil. Upholding international law and promoting good relations between states and respecting each state’s sovereignty is a legitimate aim.
To determine if the State Immunity Act 1978 is a proportionate means of achieving this aim, the Court of Appeal looked at the wider picture and various sources of public international law. It held that measures reflecting the recognised rules of public international law cannot be regarded as disproportionate. In making this assessment in the context of state immunity, the Court of Appeal noted that the rules of international law are not fixed and that the distinction between sovereign/public acts and private acts can be difficult to draw. This is particularly the case where employment contracts are concerned.
Having reviewed these international sources, the Court of Appeal concluded that the absolute immunity provided for in the State Immunity Act 1978 is not required by international law and is no longer sustainable. While immunity can be justified in the context of an employee carrying out sovereign duties, this would be excessive for support employees such as the claimants. The Court of Appeal held that the State Immunity Act 1978 can be incompatible with art.6.
State immunity and the Charter of Fundamental Rights
The Court of Appeal held that, if the State Immunity Act 1978 breaches art.6, it also breaches art.47 (right to an effective remedy) of the Charter of Fundamental Rights. As a result, the Court of Appeal made a declaration of incompatibility and held that the relevant provisions of the State Immunity Act 1978 should be disapplied insofar as they conflict with EU law.
This finding allowed the claimants to bring their EU law claims. The claimants can proceed with their claims if they are derived from EU law (discrimination, working time). However, the claimants’ domestic claims for unfair dismissal cannot proceed.
Implications for employers
The case is an interesting analysis of the law relating to state immunity and the interplay between international and domestic law.
However, this case is not only of academic interest to lawyers. The principle in this case could have wider implications, outside disputes with states. The effect is that any domestic legislation that conflicts with EU law is capable of being set aside. This introduces a level of uncertainty into employment disputes involving EU-derived rights and may affect the interpretation of domestic employment legislation.