Benkharbouche v Embassy of the Republic of Sudan (Janah v Libya)

State immunity may legitimately restrict access to court, but the restriction must remain proportionate to the legitimate aim of protecting sovereign equality and governmental functions. Applying immunity to employment claims by embassy domestic staff, whose work had no public governmental aspect, breached Article 6 ECHR. Section 3 of the Human Rights Act 1998 could not be used to reverse the carefully defined scheme of the State Immunity Act 1978. However, where employment claims fell within the material scope of EU law, Article 47 of the Charter required the tribunal to disapply conflicting provisions of the 1978 Act. That remedy applied to specified discrimination and working-time claims, but not to domestic unfair-dismissal and other employment rights with no EU-law source.

Two Employment Tribunals dismissed employment claims brought by domestic staff employed at the Sudanese and Libyan embassies after the respondent States invoked immunity under the State Immunity Act 1978 and, in Ms Janah’s case, the Diplomatic Privileges Act 1964.

The appeals concerned whether the immunity provisions breached Article 6, whether the statutes could be interpreted compatibly under section 3 of the Human Rights Act 1998, and whether conflicting provisions had to be disapplied under EU law. The central issue was the extent to which the claimants could pursue employment rights despite State immunity.

1. Appeals allowed in part. The immunity provisions were disapplied for claims within the material scope of EU law. Permission to appeal was granted to the respondents and claimants.
2. Article 6 protects access to court, subject to limitations pursuing a legitimate aim and maintaining a reasonable relationship of proportionality. State immunity pursues the legitimate aim of respecting sovereign equality and international comity. The employment of embassy cooks and domestic staff involved no governmental function on the Tribunal findings. Applying section 16 of the State Immunity Act 1978 therefore imposed a disproportionate restriction and breached Article 6.
3. The position under section 4(2)(b) was less certain because the distinction between United Kingdom nationals or habitual residents and persons lacking that connection had historical support in customary international law. The breach was assumed for the purpose of argument in Ms Janah’s case.
4. Section 3 of the Human Rights Act 1998 permits substantial interpretation, including reading in words where compatible with the legislation’s underlying thrust. It does not permit the court to alter a fundamental feature, reverse a clear statutory choice, or rewrite the carefully structured exceptions in the 1978 Act.
5. Article 47 of the Charter protects an effective remedy and fair trial. Following Kucukdeveci and Aklagaren, a national court must disapply conflicting national legislation where a fundamental EU-law right applies, including in litigation between private parties. Protocol No 30 did not exempt the United Kingdom from compliance with the Charter.
6. The remedy extended to Ms Benkharbouche’s Working Time Regulations claim, and Ms Janah’s racial discrimination, harassment and working-time claims. It did not extend to unfair dismissal or other rights originating solely in the Employment Rights Act 1996 or its predecessors.

• Employment Tribunal: Employment Judge Deol dismissed Ms Benkharbouche’s claims on State-immunity grounds.
• Employment Tribunal: Employment Judge Henderson dismissed Ms Janah’s claims on State-immunity grounds, finding that section 16 engaged Article 6 but could not be read down or disapplied.
• Employment Appeal Tribunal: Allowed the appeals in part and declared that specified provisions of the State Immunity Act 1978 were to be disapplied for claims within the material scope of EU law. Permission to appeal was granted.