Can sections 4(2)(b) and 16(1)(a) of the State Immunity Act 1978 protect embassies from Employment Tribunal claims brought by domestic staff in the UK?
No, held the Supreme Court in its unanimous judgment in Benkharbouche v Secretary of State for Foreign & Commonwealth Affairs & Anor.
The Supreme Court affirmed the judgments of the Court of Appeal and the EAT. Ms Janah and Ms Benkharbouche were purely domestic workers in the UK embassies in London of Libya and Sudan respectively. Some claims were based on domestic English rights (unfair dismissal), others derived from EU law (discrimination, harassment).
The Supreme Court held that there is no basis in customary international law for the application of state immunity in an employment context where the acts were of a private character. To deny access to a court or remedy was incompatible with Article 6 of the European Convention on Human Rights and Article 47 of the EU Charter of Fundamental Rights. No sovereign rights were engaged in either case which could have justified the application of state immunity on the facts of these cases. The case was remitted to the employment tribunal.
Thanks to Karen Jackson of didlaw for preparing this case summary.