Benkharbouche & Anor v Embassy of the Republic of Sudan (Rev 1)

State immunity may restrict access to a court under article 6 of the European Convention on Human Rights only so far as international law requires, or within a tenable margin for assessing that requirement. Customary international law does not require blanket immunity from employment claims brought by a diplomatic mission’s service staff where their work is unrelated to sovereign functions.

Sections 16(1)(a) and 4(2)(b) of the State Immunity Act 1978 therefore infringed Convention rights in their application to such claims. They could not be read down, but warranted a declaration of incompatibility. For claims within EU law, article 47 of the EU Charter had horizontal direct effect. The incompatible provisions had to be disapplied to the necessary extent.

Two Moroccan nationals were employed respectively as a cook at the Sudanese Embassy and as a domestic worker at the Libyan Embassy in London. After dismissal, they brought employment claims including unfair dismissal, working-time, wage and discrimination claims. Employment tribunals dismissed the claims because sections 4 and 16 of the State Immunity Act 1978 conferred immunity.

The Employment Appeal Tribunal held in Benkharbouche v Embassy of the Republic of Sudan; Janah v Libya [2014] ICR 169 that section 16 infringed article 6 of the Convention. It also held that, for claims within EU law, article 47 of the EU Charter required the incompatible provisions to be disapplied.

The Court of Appeal considered whether sections 16(1)(a) and 4(2)(b) were required by international law, whether they infringed Convention and EU rights, and what remedies followed.

1. Disposition. The court upheld the claimants’ challenge to the statutory immunities and rejected Libya’s challenge to EU-law disapplication. It proposed declarations that section 16(1)(a) of the State Immunity Act 1978, as applied to both claimants, infringed article 6, and that section 4(2)(b), as applied to their claims, infringed articles 6 and 14. For claims within EU law, both provisions were disapplied to the necessary extent.

2. Although Holland v Lampen-Wolfe [2000] 1 WLR 1573 bound the court on whether article 6 was engaged when immunity was required by international law, the competing Strasbourg approach produced the same practical inquiry. Immunity pursues the legitimate aim of compliance with international law. It is proportionate where it reflects generally recognised international rules. States retain a margin when the international rule is uncertain, but the view adopted must remain reasonably tenable.

3. Section 16(1)(a) was a blanket rule covering every employment dispute involving a mission member, including service staff. Neither the diplomatic conventions, the UN Convention nor state practice required immunity of that breadth. Customary international law did not require immunity for ordinary claims by service staff absent a special feature, such as recruitment, renewal, reinstatement or interference with state security. The statutory rule fell outside the range of tenable views and infringed article 6.

4. Section 4(2)(b) denied the employment exception to a person who was neither a UK national nor habitually resident here when the contract was made. The place where the contract was made or performed already supplied a sufficient jurisdictional connection. The additional distinction was nationality-based, lacked objective justification and infringed articles 6 and 14.

5. Neither provision could be read compatibly under section 3(1) of the Human Rights Act 1998. Removing the immunity through interpretation would contradict fundamental features of the detailed legislative scheme. The proper Convention remedy was a declaration of incompatibility under section 4(2).

6. Article 47 of the EU Charter was a general principle of EU law and had horizontal direct effect. The working-time claims and the racial discrimination and harassment claims fell within EU law. Section 2(1) of the European Communities Act 1972 therefore required disapplication of sections 4(2)(b) and 16(1)(a) for those claims. The disapplication was confined to service-staff claims unrelated to sovereign functions and did not extend to recruitment, renewal or reinstatement.

• Court of Appeal: By [2015] EWCA Civ 33 , upheld the challenge to the statutory immunities, proposed declarations of incompatibility, and confirmed disapplication for claims within EU law.
• Employment Appeal Tribunal: In Benkharbouche v Embassy of the Republic of Sudan; Janah v Libya [2014] ICR 169 , held that section 16 of the State Immunity Act 1978 infringed article 6 and that the provisions must be disapplied for claims within EU law.
• Employment tribunals: Upheld the respondent states’ pleas of immunity and dismissed the employment claims.