State immunity from employment rights proceedings ‘incompatible with ECHR’

The Court of Appeal in London held that sections 16(1)(a) and 4(2)(b) of the State Immunity Act 1961 (SIA) were “incompatible” with the right to a fair and public hearing under article 6 of the European Convention on Human Rights.

Master of the Rolls Lord Dyson (pictured), Lady Justice Arden and Lord Justice Lloyd Jones heard that two Moroccan nationals, Ms Fatima Benkarbouche and Ms Minah Janah, who were employed as members of the domestic staff respectively at the Sudanese and Libyan Embassies in London, were both dismissed and brought claims against the respective embassies for unfair dismissal, failure to pay the national minimum wage and breach of the Working Time Regulations 1998. Ms Janah also claimed arrears of pay, racial discrimination and harassment.

The embassies claimed “state immunity” in reliance on sections 16(1)(a) and 4(2)(b) of the 1961 Act, the effect of which was that states enjoyed a blanket immunity from the jurisdiction of the courts of the UK in respect of proceedings concerning the employment of the members of an embassy.

However, the court has decided that the blanket nature of the rule under section 16(1)(a) was not required by international law.

Handing down the judgment of the court, the Master of the Rolls said: “e conclude that a rule of the breadth of section 16(1)(a) SIA is not required by international law and is not within the range of tenable views of what is required by international law. Accordingly, in its application to the claims of these claimants, section 16(1)(a) SIA is incompatible with Article 6 ECHR.”

Ms Janah’s claim, which had not yet been resolved in the proceedings, was also barred by section 4(2)(b) because she was “not habitually resident” in the UK at the time her contract of employment was made.

“If, in due course, it is held that she was not habitually resident in the United Kingdom at the time her contract of employment was made, section 4(2)(b) will be an obstacle in the path of her claim for the same reason,” Lord Dyson observed.

There was authority from the European Court of Human Rights in Strasbourg and other national courts which provided “compelling support” for the view that there was no rule of international law which required the grant of immunity in the circumstances identified in section 4(2) SIA.

“Accordingly, no such limitation to the exception to immunity is required by customary international law, nor is it within the range of reasonably tenable opinion within the margin of appreciation granted to states in the assessment of their international obligations,” the Master of the Rolls added.

The judges concluded that section 4(2)(b) was “discriminatory” on grounds of nationality and for that reason it infringed article 6 of the ECHR when read with article 14, and therefore made a declaration of incompatibility in respect of section 4(2)(b) and section 16(1)(a).

The court also concluded that the claims by both claimants for breach of the Working Time Regulations 1998 and by Ms Janah for racial discrimination and harassment fell within the scope of EU law; the claimants were entitled to rely on article 47 of the EU Charter; and the court was required to disapply sections 4(2)(b) and 16(1)(a) in so far as they applied to those parts of the claims which fall with the scope of EU law.

Lord Dyson said: “It is common ground that, in so far as relevant to the present case, the content of Article 47 is identical to that of Article 6 ECHR. It follows from our conclusions on Article 6 ECHR that the appellants have accordingly succeeded in showing that Article 47 is violated.”

The judges concluded that the right to an effective remedy guaranteed by Article 47 EU Charter was a general principle of EU law so that Article 47 accordingly had “horizontal direct effect”.