On the face of it last month’s Court of Appeal decision in the Benkharbouchecase is about a relatively obscure corner of UK employment law: the extent to which foreign governments employing embassy staff in London can claim state immunity to defeat claims in the employment tribunal. However it also demonstrates how Article 6 of the Human Rights Convention, when combined with Article 47 of the EU Charter, can be used to guarantee substantive as well as purely procedural rights.
Last month’s decision is not the first occasion on which the immunities conferred by the State Immunity Act 1978 have been considered by the Court of Appeal, but it is the first time it has assessed them in the light of Article 6, which guarantees a “fair and public” hearing where “civil rights” are determined. The outcome was a partial victory for the claimants – catering staff employed at the Libyan and Sudanese embassies in London – who secured a declaration that the relevant provisions of the SIA were not Article 6 compliant in so far is it barred their particular claims. Due to the horizontal direct effect of Article 47 (of which more later) they are able to proceed directly to the tribunal with claims (such as race discrimination) derived from EU law, though they will have to wait for the UK Government to amend the law in relation to their purely domestic claims, such as unfair dismissal.
As the Court of Appeal pointed out, logically Article 6 cannot be engaged in circumstances where employees have no civil right to pursue: the whole basis of state immunity is that it operates to deny the existence of any right to sue, rather than operating as a purely procedural bar. It would only be if the provisions in the SIA (which on their face confer blanket immunity on embassy staff whatever the nature of their claim and however lowly their status) were in fact out of step with the relevant principles of international law on state immunity that Article 6 would be engaged. Previous decisions of the European Court of Human Rights had in fact adopted the opposite approach. They had assumed Article 6 was engaged, but found no breach where to allow a claimant to sue would go against those same international principles. Either way however, the crucial question was whether the SIA correctly reflected them.
The majority of the Court of Appeal’s judgment is therefore taken up with a detailed examination of the international law of state immunity as it affects employment disputes. That a domestic court was obliged to embark on such an enquiry is due to Article 3 Human Rights Act 1998 which requires our courts, where possible, to interpret domestic law in line with rights derived from the Human Rights Convention. In this case the Court of Appeal decided it was not possible to re-write the SIA to make it compliant, so it will issue a declaration of non-compliance instead. However in relation to EU-derived rights it reached the view that Article 47 of the EU Charter compelled the disapplication of the offending provisions, since it established an overriding principle of EU law that could be relied on directly by all litigants.
To cut a long story short, it appears that Article 47 – which for these purposes covers exactly the same ground as Article 6 – can be used to create a uniform law of state immunity for claims from individuals across the EU. We may therefore end up with the surprising outcome that employees in other member states may reach for the Court of Appeal’s decision Benkharbouche as well as recent decisions of the European Court of Human Rights when deciding whether their employer’s plea of state immunity can be challenged. And if Article 47 can do this job for state immunity, despite the absence of any EU legislation on this point, how much further can it go?