In the recent case of Benkharbouche v. Secretary of State for Foreign & Commonwealth Affairs & Anor the Supreme Court agreed with the EAT and the Court of Appeal and unanimously held that sections 4(2)(b) and 16(1)(a) of the State Immunity Act 1978 (SIA) cannot protect embassies from Employment Tribunal claims brought by domestic staff in the UK.
Two individuals from Morocco were employed by the Sudanese and Libyan embassies, in London. Both individuals were dismissed from their respective embassy and tried to bring claims under English and EU law, specifically for unfair dismissal, discrimination, harassment and breaches of Working Time Regulations. The two embassies resisted the claims, relying on the immunity for foreign states given by sections 16(1)(a) and 4(2)(b). The employees argued that these provisions were incompatible with the right to a fair trial (Article 6 European Convention on Human Rights), and the right to a fair trial and effective remedy (Article 47 EU Charter of Fundamental Rights). They argued that the provisions of the SIA should be disapplied.
The Supreme Court dismissed the appeal by the States. It held that the application of sections 16(1)(a) and 4(2)(b) of the SIA were not aligned with any recognised rule of customary international law in respect of an individual’s employment. It held that neither State was entitled to immunity. With regard to the claims based on EU law (discrimination and working time), the Supreme Court disapplied the infringing provisions of the SIA and remitted the case to the Employment Tribunal. The other claims remained barred by the SIA since the only applicable remedy was to make a declaration of incompatibility. The latter may be seen as a Pyrrhic victory by the individuals, but it has wider importance in terms of empowering such workers.
Follow this link to see the full judgment.