Supreme Court rules embassies’ immunity from employment claims unlawful

Judgment was handed down yesterday in the case of Janah v Secretary of State for Foreign and Commonwealth Affairs and Libya, and Benkharbouche v SSFCA.

The two claimants, both domestic workers from Morocco who sought to stop state immunity applying to their claims, were represented by specialist charity Anti Trafficking and Labour Exploitation Unit (ATLEU).

The claimants were employed directly by Libya and Sudan respectively. They claimed that they were paid grossly under the national minimum wage, forced to work unlawful hours, unfairly dismissed and, in Ms Janah’s case, discriminated against on racial grounds.

In its judgment, the Supreme Court said the 1978 Act applies immunity more widely than required by international law, which generally requires immunity only in cases where the employee exercises sovereign authority or where some special characteristic is present.

Because of this, it unlawfully breached article 6 of the European Convention on Human Rights (the right to a fair trial) and similar provisions in article 47 of the Charter of Fundamental Rights of the European Union.

In addition, in preventing the claimants from bringing claims on the ground that they were neither British nationals nor permanently resident in the UK at the start of their employment, the Act unlawfully discriminated against the Claimants on the grounds of nationality, contrary to article 14 ECHR.

The breach of article 47 CFREU means that relevant provisions of the Act do not apply to their claims based on EU law such that the claimants can litigate these claims in the employment tribunal.

In respect of non-EU law rights, the Supreme Court re-affirmed the Court of Appeal’s “declaration of incompatibility” under the Human Rights Act 1998, stating that the relevant provisions of the Act are contrary to the claimants’ right of access to the court and are discriminatory.

ATLEU solicitor Emmy Gibbs, who worked on this case, said: “We are delighted that the Supreme Court has recognised that the UK’s State Immunity Act is too generous to foreign states, preventing employees, including many vulnerable workers, accessing justice and going well beyond the requirements of international law. It’s a shame that the Foreign and Commonwealth Office sought to defend the State Immunity Act rather than welcoming the opportunity to review the law in this area.”

She added the case “demonstrates the importance of having constitutional checks that are capable of identifying and correcting outdated legislation”.

Ms Gibbs said: “It is critical that, during the process of withdrawal from the EU, the government takes steps to fill the vacuum left by the CFREU.

“We hope the government will now act fast to change the law, bringing it into line with its international obligations.”