Two embassy workers, one working for the Libyan embassy in London and another working for the Sudanese embassy in London, brought claims in the employment tribunal, against Libya and Sudan respectively, after being dismissed. The claims were dismissed by the tribunal, on the basis that both Libya and Sudan benefited from state immunity under the State Immunity Act 1978.
A series of appeals joined these cases together and brought them before the Supreme Court. The heart of the issue lies in an apparent tension between the State Immunity Act -the purpose of which is to ensure there are no infringements to a foreign state’s sovereignty- and article 6 of the European Convention for Human Rights (ECHR) regarding the right to a fair trial, which includes right of access to a court.
In reviewing the case-law of the European Court of Human Rights, the Supreme Court found that article 6 violations had previously been found where the application of state immunity was contrary to rules of international law. Naturally, the Secretary of State argued that state immunity in this case was consistent with customary international law.
Interestingly, the Supreme Court found that there has been insufficient international consensus for customary international law to emerge regarding an absolute doctrine of state immunity. Therefore state immunity could not be extended to the employment of embassy staff, which the court deemed to be a private act, unrelated to the concept of state sovereignty.
Those claims which were based on EU law (such as those relating to working time, discrimination and harassment) were therefore allowed to proceed, and were remitted to the employment tribunal for consideration.
This decision is likely to benefit a horde of low-paid workers who were employed in embassies in the UK, and we may see numerous tribunal claims against foreign states proceed in the employment tribunals.
However, the Supreme Court could do no more than make a declaration of incompatibility in respect of claims for breaches of UK domestic law (in this case unfair dismissal and minimum wage). This is because the Supreme Court has no jurisdiction to disapply the State Immunity Act 1978 in respect of claims which are not based on EU rights.
Whether Parliament will now amend UK laws on state immunity to ensure they are compatible with EU employment rights remains to be seen. This may not be at the top of Parliament’s agenda at present in light of the ongoing Brexit preparations. Ironically the position will change again after Brexit if UK legislation is not amended as the result will be that embassy support staff will no longer be able to rely on horizontal direct effect of EU legislation to pursue EU employment protection rights. In other words, we will be back to the earlier position of embassy support staff not being able to bring claims against an embassy unless they are a British citizen and habitually resident in the UK at the time the contract was entered into.’
Our advice to embassies is to put in place an immediate review of their contractual arrangement (employment contracts and contracts for services) to ensure they comply with EU employment rights as a minimum as these can now be enforced by support staff. Please contact our employment team to find out how we can assist.
Benkharbouche (Respondent) v Secretary of State for Foreign and Commonwealth Affairs (Appellant) and Secretary of State for Foreign and Commonwealth Affairs and Libya (Appellants) v Janah (Respondent) [2017] UKSC 62.
