Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs

State immunity restricts access to a court consistently with article 6 only where customary international law requires the forum state to recognise the immunity. Customary law follows the restrictive doctrine: immunity attaches to sovereign acts, but not to acts of a private law character.

Employment must therefore be characterised by considering the whole context, especially the employee’s functions and the acts underlying the claim. Employing purely domestic embassy staff ordinarily constitutes a private act. Blanket immunity based on an employee’s nationality, residence or membership of a diplomatic mission exceeds customary law. Such immunity is incompatible with article 6 and must be disapplied where it conflicts with directly effective EU rights.

Two Moroccan nationals brought Employment Tribunal claims arising from their employment as domestic staff in the London embassies of Libya and Sudan. The tribunals dismissed the claims because sections 4(2)(b) and 16(1)(a) of the State Immunity Act 1978 conferred immunity on the employing states.

The Employment Appeal Tribunal disapplied those provisions in relation to claims derived from EU law. The Court of Appeal, [2015] EWCA Civ 33, affirmed that decision and also declared the provisions incompatible with the European Convention on Human Rights. The Secretary of State appealed.

The central issue was whether customary international law required immunity for the employment claims. That determined whether the statutory restrictions on access to a court were compatible with article 6 of the Convention and article 47 of the EU Charter.

Lord Sumption delivered the judgment, with which Lord Neuberger, Lady Hale, Lord Clarke and Lord Wilson agreed.

1. Disposition. The Secretary of State’s appeal was dismissed and the Court of Appeal’s order was affirmed. Both cases were remitted to the Employment Tribunal for the EU-law claims to be determined on their merits.
2. Customary international law. A customary rule requires widespread, representative and consistent state practice accepted as legally obligatory. The restrictive doctrine supplies the governing default: a state is immune only for acts performed in the exercise of sovereign authority. The relevant act must be characterised by its juridical nature in its whole context, not merely by the governmental purpose for which it was performed. The approach in The I Congreso del Partido [1983] 1 AC 244 was applied.
3. Access to a court. State immunity can justify restricting article 6 rights only where international law requires the forum state to recognise the immunity. A merely tenable or permissible view of international law is insufficient where an ascertainable customary rule exists. Anything exceeding the immunity required by international law is a discretionary and disproportionate denial of access.
4. Employment claims. The characterisation ordinarily depends on the employment relationship and the employee’s functions. Diplomatic agents exercise governmental authority. Some administrative or technical staff may do so where their functions are sufficiently close to the mission’s sovereign work. Purely domestic staff ordinarily do not. The respondents’ cooking, cleaning and household duties, and their alleged treatment, involved no exercise of sovereign authority or sovereign interest.
5. The statutory provisions. Section 4(2)(b) of the State Immunity Act 1978 had no basis in customary international law because it conferred immunity by reference to nationality and residence irrespective of the character of the state’s acts. Section 16(1)(a) was likewise unjustified because it conferred immunity for all mission employees. The Vienna Convention right freely to appoint mission staff prevents orders determining who must be employed, including specific enforcement or reinstatement. It does not preclude damages claims that merely adjust the financial consequences of dismissal.
6. Convention and EU remedies. Both provisions were incompatible with article 6. Section 4(2)(b) was also incompatible with articles 6 and 14 because its nationality discrimination lacked justification. For EU-law claims, article 47 required the inconsistent domestic provisions to be disapplied. For the remaining domestic claims, the remedy was a declaration of incompatibility, so the statutory bars continued to apply.

1. United Kingdom Supreme Court: The Secretary of State’s appeal was dismissed unanimously. The order of the Court of Appeal was affirmed, and the EU-law claims were remitted to the Employment Tribunal.
2. Court of Appeal: In [2015] EWCA Civ 33, the court affirmed the Employment Appeal Tribunal’s disapplication of sections 4(2)(b) and 16(1)(a) of the State Immunity Act 1978 for EU-law claims. It also declared both provisions incompatible with article 6, and section 4(2)(b) incompatible with articles 6 and 14.
3. Employment Appeal Tribunal: The conjoined appeals were allowed in relation to EU-law claims. The statutory provisions were disapplied so far as they prevented claims for discrimination, harassment and breaches of the Working Time Regulations.
4. Employment Tribunal: Different judges dismissed both employees’ claims because their state employers were immune under the State Immunity Act 1978.