The UK Court of Appeal has ruled that diplomatic immunity cannot be relied upon to block employment law breaches from the courts. The Court found that the relevant sections on the law on state immunity were incompatible with employee rights under European Union regulations and the European Convention on Human Rights, and that they gave broader shielding to embassies than was required in international law.
The applicants in the current case are both Moroccan nationals who were employed as members of the domestic staff at the Sudanese and Libyan Embassies in London. They 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 claims arrears of pay, racial discrimination and harassment.
Under the State Immunity Act 1979, section 16(1)(a) gives embassies blanket immunity from the jurisdiction of the UK courts in proceedings concerning employment within embassies. Section 4(2)(b) also extends immunity to employment contracts made where the employee was not habitually resident in the UK at the time of signing.
The Court of Appeal looked at the requirements of international law on diplomatic immunity, compatibility with the European Convention on Human Rights (ECHR), and examined the claims under EU law and the EU Charter on Fundamental Rights.
Access to the courts is a precondition to the enjoyment of fair trial rights and so Article 6(1) of the ECHR “secures a right to have any claim relating to a person’s civil rights and obligations brought before an independent and impartial tribunal.” The Court of Appeal stated that this interference with rights was not permitted by the requirement of international law on diplomacy because it gave broader protection from litigation to embassies than was required by conventions such as the European Convention on State Immunity 1972, the Vienna Declaration on Diplomatic Relations 1961, and the UN Convention on Jurisdictional Immunities of States and their Property 2004.
The court made a declaration of incompatibility of sections 4(2)(b) and 16(1)(a) with the Convention, using powers under the UK Human Rights Act
The Court also said that where claims fall within the scope of EU law, such as the claims for breach of Working Time Regulations, racial discrimination, and harassment, then the court is required to disapply the State Immunity sections in favour of EU law.
Click here to read the full decision in Benkharbouche & Janah v Embassy of the Republic of Sudan & Others [2015] EWCA Civ 33
Click here to read a summary.