Benkharbouche v Embassy of the Republic of Sudan
| Jurisdiction | UK Non-devolved |
| Court | Employment Appeal Tribunal |
| Judgment Date | 2014 |
| Year | 2014 |
| Date | 2014 |
Conflict of laws - Sovereign immunity - Employment - Domestic worker at London embassy - Claims of unfair dismissal and breach of working time provisions - Embassy claiming state immunity - Worker excluded from exception for employees - Whether denial of access to enforcement of claims breach of right to fair trial - Whether statute to be disapplied -
In the first case, the claimant, a Moroccan national living in the United Kingdom, was employed as a cook at the Sudanese Embassy in London. She was dismissed and brought a number of claims against the embassy, including unfair dismissal, failure to pay the minimum wage and breach of the Working Time Regulations 1998. The embassy, by its response, asserted state immunity under section 1 of the State Immunity Act 1978F1. An employment judge upheld that defence and rejected the claimant’s contentions that, pursuant to section 2 of the European Communities Act 1972F2 and section 3 of the Human Rights Act 1998F3, the tribunal should either disapply section 16(1)(a) of the 1978 Act, which excluded members of a mission from the protection otherwise afforded employees by section 4, as inconsistent with the directly effective rights contained in article 47 of the Charter of Fundamental Rights of the European UnionF4, or it should interpret it in a way consistent with the claimant’s right to a fair trial under article 6 of the Convention on Human Rights and Fundamental Freedoms, scheduled to the 1998 Act.
In the second case, the claimant, a Moroccan member of the domestic staff at the Libyan Embassy, but who was not habitually resident in the United Kingdom within section 4(2)(b) of the 1978 Act, brought claims of unfair dismissal, arrears of pay, racial discrimination and breach of the Working Time Regulations 1998, which were also met by an assertion of state immunity. An employment judge held that there was insufficient evidence to establish that application of section 4(2) of the 1978 Act, which excluded the claimant from the protection of section 4, would be disproportionate to the legitimate aim of state immunity so as to constitute a breach of the claimant’s right to a fair trial under article 6 of the Convention; and that, although the grant of immunity by application of section 16 of the 1978 Act did infringe her article 6 rights, it could not be read down, since to do so would depart substantially from a fundamental feature of the 1978 Act.
On appeals by the claimants—
Held, (1) that conflict between statutes recognising international obligations to other states and rights regarded as fundamental and recognised by the Human Rights Act 1998 had to be resolved by applying an approach of proportionality so as to strike a balance between the right of access to the court and recognition of state equality; that the court had to ascertain whether the circumstances of a case justified the restriction of immunity; that, on the evidence, it would not interfere with any public governmental function of the respondent states if the claimants’ employment disputes were rendered amenable to a decision of a court; that, accordingly, the principle of state immunity did not out-balance the importance of the claimants’ access to the courts, and there would be a breach of their rights under article 6 of the European Convention on Human Rights if section 16 of the State Immunity Act 1978 were applied; but that, even assuming that application of section 4(2)(b) would also contravene article 6, the requirements of section 3 of the Human Rights Act 1998 to read legislation so as to be compatible with Convention rights did not extend to modification inconsistent with the essential principles of the legislation; and that, since the intent expressed in the 1978 Act was to confer immunity subject to specific exceptions framed in a careful and detailed pattern, to alter the list by moving an employee from the category of not being entitled to pursue a claim to being so entitled would affect the overall balance struck by the legislature (post, paras 17, 32–34, 37, 38, 40–42).
(2) But that, allowing the appeals in part, article 47 of the European Charter of Fundamental Rights required an effective remedy before a tribunal for rights guaranteed by the law of the European Union, and the Charter now had direct effect in national law, binding member states when they were implementing EU law; that, where the application of a general principle of EU law was involved, national courts had to provide, even between private individuals, the legal protection individuals derived from EU law and to ensure its full effectiveness, disapplying if need be any provision of national law contrary to the principle; that in the UK that could be done pursuant to section 2(1) of the European Communities Act 1972; that, however, the material scope of EU law did not extend to employment rights that could not be attributed to any European instrument, such as the right not to be unfairly dismissed; and that, accordingly, in relation to the employment claims falling within the material scope of EU law only, namely the claims of breach of the Working Time Regulations 1998 and the claim of race discrimination, the tribunal was bound to disapply sections 4(2)(b) and 16 of the State Immunity Act 1978 (post, paras 43, 48, 51, 52, 56, 63, 66, 70).
The following cases are referred to in the judgment:
Åklagaren v Fransson
Aldona S v Royaume Uni (
Biggs v Somerset County Council [
Bleuse v MBT Transport Ltd [
Cia Naviera Vascongado v SS Cristina (The Cristina) [
Congreso del Partido, I [
Connolly v Director of Public Prosecutions
Cudak v Lithuania (
European Parliament v Council of the European Union (Commission of the European Communities intervening)
Fogarty v United Kingdom (
Francovich v Italian Republic
Ghaidan v Godin-Mendoza
Iran (Empire of) Claim against (
Kücükdeveci v Swedex GmbH & Co KG
Marshall v Southampton and South West Hampshire Area Health Authority (Teaching)
R (NS (Afghanistan)) v Secretary of State for the Home Department (Amnesty International Ltd intervening)
R (Saeedi) v Secretary of State for the Home Department
R v Secretary of State for Transport, Ex p Factortame Ltd (Interim Relief Order) [
Rugby Football Union v Consolidated Information Services Ltd (formerly Viagogo Ltd)
Sabeh el Leil v France (
Secretary of State for the Home Department v MB
Staffordshire County Council v Barber [
The following additional cases were cited in argument:
EBR Attridge LLP (formerly Attridge Law) v Coleman [
Fotieh v United Arab Emirates (unreported) 23 January 2012,
R (Zagorski) v Secretary of State for Business, Innovation and Skills
APPEALS from employment judges sitting at London Central
In the first case an employment judge, in a judgment and reasons on a pre-hearing review sent to the parties on 10 April 2012, decided that the tribunal had no jurisdiction to hear claims of, inter alia, unfair dismissal, failure to pay the minimum wage and breach of the Working Time Regulations 1998 (SI 1998/1833) made by the claimant, Ms Fatima Benkharbouche, against the respondent employer, the Sudanese Embassy, because of the operation of the State Immunity Act 1978.
In the second case a different employment judge, in a judgment and reasons sent to the parties on 19 November 2012, upheld a plea of state immunity in respect of, inter alia, claims of unfair dismissal, discrimination, harassment and breaches of the Working time Regulations 1998 made by the claimant, Ms Minah Janah, against the respondent employer, Libya.
The claimants appealed on the grounds that the employment judges had erred in law (1) in applying state immunity in circumstances where it was not necessary to protect a foreign state in the discharge of its sovereign functions in the host state; and (2) in failing to hold that the State Immunity Act 1978 should be disapplied in respect of employment rights within the material scope of European law.
The facts are stated in the judgment.
Paul Luckhurst (instructed by
James Holmes-Milner (instructed by
Oliver Assersohn (instructed by
The court took time for consideration.
4 October 2013. LANGSTAFF J (PRESIDENT) handed down the following judgment.
1 These appeals...
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Ms. Fatima Ahmed Benkharbouche (1st Appellant/Claimant) Ms. Minah Janah (2nd Appellant/Claimant) v Embassy of the Republic of Sudan Libya (Cross-Appellant/ Respondent) The Secretary of State for Foreign and Commonwealth Affairs (1st Intervener) 4A Law (2nd Intervener) The Aire Centre (3rd Intervener)
...Appeals from the two decisions were heard together by Langstaff J., the President of the Employment Appeal Tribunal. ( Benkharbouche v. Embassy of the Republic of Sudan; Janah v. Libya [2014] ICR 169.) There, as before the tribunals, it was common ground that the SIA on its face appeared to......
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London Steam-Ship Owners' Mutual Insurance Association Ltd v Kingdom of Spain (THE “PRESTIGE”) (NO 3)
...and Mustill (dissenting) in Kuwait Airways evidently regarded the words in parentheses as qualifying words. However, as noted earlier, Benkharbouche indicates that, by reason of inter alia Article 6 of the ECHR, SIA 1978 is to be interpreted by reference to the restrictive version of State ......
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Mrs A Muda v Malaysia: 2203623/2021
...not in itself, but as an indication of the act’s juridical character.” [58]. Human Rights Law; Incompatibility; Reading Down 73. In Benkharbouche, the Supreme Court considered 2 terms of the State Immunity Act, as they were then 73.1.The s4(2)(b) carve-out to the s4(1) permission for employ......
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Embassy of Brazil v de Castro Cerqueira
...derived from EU law: see for example, the decision of the Employment Appeal Tribunal in Benkharbouche v Embassy of the Republic of Sudan [2014] ICR 169, which is currently subject to appeal.15 Section 12 of the Act deals with the service of documents instituting proceedings and judgments in......
