Foreign embassies cannot use state immunity to avoid unfair dismissal claims brought by staff, the Court of Appeal has held.
Benkharbouche and Janah v Embassy of the Republic of Sudan [2015] EWCA Civ 33 concerned two Moroccan nationals employed as domestic staff respectively at the Sudanese and Libyan Embassies in London.
They were dismissed, and brought claims 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 case centred on whether the service staff of a foreign diplomatic mission can bring proceedings in this jurisdiction to assert rights against a foreign state employer.
The Embassies claimed state immunity. Under s 16(1)(a) of the State Immunity Act 1961, states enjoy 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. The Libyan Embassy argued that Ms Janah’s claim was barred under s 4(2)(b) since she was not habitually resident in the UK at the time her contract of employment was made.
Giving judgment along with two Court of Appeal judges, however, Lord Dyson held that “a rule of the breadth of s 16(1)(a) is not required by international law and is not within the range of tenable views of what is required by international law”, and that to bar their claims would be a disproportionate restriction and incompatible with Art 6 of the European Convention on Human Rights.
They held that s 4(2)(b) is discriminatory on grounds of nationality and infringes Art 6 of the Convention, and that the claims for breach of the Working Time Regulations, racial discrimination and harassment fell within the scope of EU law.
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