Janah v Libya (Jurisdictional Points : State immunity)

Where an employment claim against a foreign state falls within the material scope of EU law, a tribunal must disapply domestic state-immunity provisions that conflict with the right to an effective remedy and a fair trial in Article 47 of the Charter. That obligation applies even in litigation between private parties.

The interpretative duty under section 3 of the Human Rights Act 1998 does not permit a court to reverse the carefully defined immunity scheme in the State Immunity Act 1978. The relevant EU-law scope is confined to rights derived from EU measures. It does not extend to all domestic employment rights merely because some employment rights are regulated by EU law.

Two Moroccan nationals employed as domestic staff at the Sudanese and Libyan Embassies in London brought employment claims after dismissal. The Employment Tribunals held that the respondent states were immune from suit under sections 4 and 16 of the State Immunity Act 1978.

Both claimants appealed. They contended that immunity denied access to a court contrary to Article 6 of the European Convention on Human Rights and that the statutory provisions should either be interpreted compatibly under section 3 of the Human Rights Act 1998 or disapplied under EU law. The central issue was whether domestic immunity provisions could prevent proceedings concerning employment rights within the material scope of EU law.

1. Appeals allowed in part. The Employment Appeal Tribunal held that the statutory immunity provisions had to be disapplied, but only for claims falling within the material scope of EU law. Ms Benkharbouche could proceed with her Working Time Regulations claim. Ms Janah could proceed with her race discrimination, harassment and Working Time Regulations claims.

2. The functions performed by the claimants were domestic and did not involve governmental authority. Applying the approach in Cudak and Sabeh el Leil, application of section 16 of the State Immunity Act 1978 denied them access to a court contrary to Article 6. The Tribunal assumed, for the purpose of the argument, that the immunity available under section 4(2)(b) also breached Article 6.

3. Section 3 of the Human Rights Act 1998 could not cure that incompatibility. Reading exceptions into sections 4 and 16 would alter the detailed and deliberate legislative balance between immunity and access to a court. It would reverse the statutory scheme rather than interpret it consistently with its underlying thrust.

4. Article 47 of the Charter applied where the claims implemented EU rights. Article 47 embodied a fundamental EU principle. Under EU law, a national tribunal must give that principle full effect and disapply conflicting domestic legislation, including in a dispute between private parties. The Human Rights Act mechanism could not displace that EU-law obligation.

5. The material scope of EU law did not encompass unfair dismissal or other rights created solely by domestic employment legislation. It encompassed the Working Time and race-discrimination claims derived from the identified EU Directives. Permission to appeal was granted to all parties because the area required consideration by a higher appellate court.

• Employment Appeal Tribunal: Allowed the appeals only in respect of EU-derived employment claims, disapplying the relevant immunity provisions.
• Employment Tribunals, London Central: Employment Judge Deol and Employment Judge Henderson had dismissed the respective claims on grounds of state immunity. Judge Henderson stayed Ms Janah's proceedings pending this appeal.