Domestic Embassy Staff Employment Claims Not Excluded by State Immunity
Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs
The Supreme Court has held that the State Immunity Act 1978, which confer immunity on foreign states in respect of employment claims brought by embassy staff, are incompatible with the right to a fair trial under Article 6 of the European Convention on Human Rights and the right to a fair trial and effective remedy under Article 47 of the EU Charter of Fundamental Rights.
The offending provisions would be disapplied in so far as they bar claims based on EU law.
B, a Moroccan national, was employed as a cook at the Sudanese embassy in London until her dismissal in November 2010. J, also a Moroccan national, was employed as a member of the domestic staff at the Libyan embassy in London before she was dismissed in January 2012. When B and J separately attempted to bring employment tribunal proceedings, the two embassies resisted the claims on the basis that the employees, as members of a mission, fell within the exclusion provided for in S.16(1)(a) and, in J’s case, that S.4(2)(b) disapplied the exception to immunity in respect of contracts of employment because she was not habitually resident in the UK at the time her contract was made. B and J acknowledged that the SIA apparently barred them from asserting their employment rights but argued that the exclusions were incompatible with their right to a fair trial under Article 6 ECHR. Alternatively, they argued that the relevant provisions should be disapplied as incompatible with EU law. Both were unsuccessful before the tribunal and both appealed to the EAT, where their cases were conjoined and heard by the then President, Mr Justice Langstaff.
The Court of Appeal dismissed the appeal. It concluded that the extent of state immunity imposed on B and J’s cases was not required by international law, nor within the margin of appreciation accorded to states to determine the extent of their international obligations. It therefore held that the application of S.16(1)(a) SIA to B and J’s claims was incompatible with Article 6. The Court went on to hold that S.4(2)(b) was not required by international law either, and that it was also discriminatory on the ground of nationality. It therefore proposed to make a declaration of incompatibility in respect of both provisions. It further held that Article 47 of the EU Charter was also violated by the provisions of the SIA and, because the Article had horizontal direct effect, the Court was required to disapply them. The respondent States appealed to the Supreme Court.
The Supreme Court unanimously dismissed the appeal. Lord Sumption, giving the only judgment, agreed with the Court of Appeal that the relevant provisions of the SIA were not consistent with any recognised rule of customary international law. Although there is a long-standing consensus of states in favour of immunity there has probably never been sufficient international consensus for an absolute rule of state immunity in customary international law, and the only consensus that there has ever been about the scope of state immunity is the relatively recent consensus in favour of a restrictive doctrine. In customary international law, a foreign state is immune where a claim is based on sovereign acts, whereas the employment of purely domestic staff in a diplomatic mission is a private act. Furthermore, in so far as the exception under S.4(2)(b) of the Act depends entirely on the nationality and residence of the claimant at the date of the employment contract, no distinction is drawn between acts of a private nature and acts of a sovereign nature. A person’s nationality and residence at the date of the employment contract are not proper grounds for denying a person access to the courts in respect of their employment. Thus, as a matter of customary international law, neither of the respondent States was entitled to immunity in respect of B and J’s claims.
As for remedy, Lord Sumption agreed that Ss.4(2)(b) and 16(1)(a) of the SIA should be disapplied for the purpose of allowing the claims based on EU law to proceed, and so those would be remitted to the employment tribunal for hearing. The other claims remained barred by the 1978 Act, since the proper remedy, as recognised by the Court of Appeal, was to make a declaration of incompatibility rather than to disapply the offending provisions.
Link to transcript: http://www.bailii.org/uk/cases/UKSC/2017/62.html
Report by Thomson Reuters