Domestic workers employed as members of the service staff of foreign diplomatic missions in the United Kingdom were entitled to bring proceedings asserting their employment rights against the employer state, in claims including unfair dismissal and breach of working time provisions, and such claims were not barred by the doctrine of state immunity pursuant to provisions in the State Immunity Act 1978.

Section 16(1) of the 1978 Act, which provided a blanket immunity and excluded from jurisdiction proceedings concerning the employment of the members of a mission, and section 4(2), which excluded employees who were neither nationals of the United Kingdom nor habitually resident there from the exception to immunity under section 4(1), infringed such employees’ rights to a fair trial under articles 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and, in respect of section 4(2), was discriminatory on grounds of nationality under article 14. The limitations imposed by those sections of the 1978 Act could not be read and given effect in a way which was compatible with those Convention rights, nor were they required by customary international law and were not within the range of tenable views of what was required under international law. A declaration of incompatibility would be made in respect of their provisions, pursuant to section 4(2) of the Human Rights Act 1998.

Furthermore, the right to an effective remedy guaranteed by article 47 of the Charter of Fundamental Rights of the European Union could be relied on in respect of those employment claims which fell within the scope of European Union law, so that sections 4(2)(b) and 16(1)(a) of the 1978 Act would be disapplied in their application to such claims.

The Court of Appeal so held when it (1) allowed the appeals of the claimants, Fatima Ahmed Benkharbouche and Minah Janah, who were Moroccan nationals, against the judgment of the Employment Appeal Tribunal (Langstaff J, President) [2014] ICR 169 on 4 October 2013 in their respective claims against their employers, in the first case, the Sudanese Embassy, for inter alia unfair dismissal, failure to pay the minimum wage and breach of the Working Time Regulations (SI 1998/1833), and in the second case, Libya, for inter alia unfair dismissal,. discrimination, harassment and breach of the 1998 Regulations, but (2) dismissed Libya’s cross-appeal in the second case. The appeal tribunal had (a) allowed in part the claimants’ appeals from judgments of employment judges sitting at London Central Employment Tribunal (sent to the respective parties on 10 April 2012 and 19 November 2012), (b) held that, although sections 16(1) and 4(2) of the 1978 Act were incompatible with the claimants’ rights under article 6 of the Convention, relief under the Human Rights Act 1998 could not be granted because it was not possible to achieve a Convention-compliant reading of those provisions, but (c) granted a declaration in respect of those parts of the claims which were within the scope of European Union law that the 1978 Act was to be disapplied pursuant to the claimants’ rights under article 47 of the Charter. The claimant in the first case had been a cook at the Sudanese Embassy in London for several years until her dismissal in November 2010, and the claimant in the second case a member of the service staff of the Libyan Embassy for several years before her dismissal in January 2012 and not habitually resident in the United Kingdom at the time when her contract of employment had been entered into. The issue of habitual residence in the first case had not been resolved in the court below.

LORD DYSON MR, giving the judgment of the court (substantially written by ARDEN and LLOYD JONES LJJ), said that the court was faced with conflicting approaches on state immunity restrictions on access to the courts and article 6 of the Human Rights Convention. The court was bound by the House of Lords decision in Holland v Lampen-Wolfe [2000] 1 WLR 1573, 1588 that where the extent of the jurisdiction of a state party to the Convention was in question it had to be determined first, because if that party had no jurisdiction to exercise questions of legitimate aim and proportionality did not arise, and that article 6 was not engaged where the grant of immunity was required by international law. The approach of the European Court of Human Rights, beginning with Al-Adsani v United Kingdom (2001) 34 EHRR 273, paras 53–56, was very different: it held that measures taken by a state party which reflected generally recognised rules of public international law on state immunity could not in principle be regarded as imposing a disproportionate restriction on the right of access under article 6. However, in the present case it was not necessary to choose between the competing approaches. It was difficult to see how the article could be engaged if international law denied the contracting state jurisdiction over a dispute. In such a case, the European Court of Human Rights would be likely to hold the grant of immunity to be a proportionate means of achieving a legitimate aim: Jones v United Kingdom (2014) 59 EHRR 1, para 186. The present court was concerned with essentially one test which was whether the grant of immunity was required by international law; that followed from the fact that the legitimate aim at which those means were directed was compliance with international law. Thus, it seemed that if a state adopted a rule restricting access to the court which it was not required by international law to adopt, article 6 was violated unless the rule otherwise met the requirements for a limitation on that right. The position would not always be that clear. The precise scope of immunities required by international law was often the subject of great uncertainty. It was necessary to consider whether the immunity of the states in the present cases, by virtue of sections 4 and 16(1)(a) of the 1978 Act, was required by international law, or at least lay within the margin of appreciation accorded to states to determine the extent of their obligations under international law. The effect of the latter section was to grant immunity in all cases concerning embassy or consular employment disputes. It was a blanket provision. Having been referred to various international Conventions relating to state immunity and the practice of other countries whether to impose a blanket immunity in respect of disputes concerning the employment of members of a mission, it was impossible to conclude that there was any rule of international law which required the grant of immunity in the absence of some special feature such as where the claim was for the recruitment, renewal of employment or re-instatement of an individual or where the proceedings would interfere with the state’s security interests. State practice did not support the existence of a rule of customary international law which required the grant of immunity in the circumstances of the present cases. It therefore fell outside the margin of appreciation which article 6 afforded in that regard to states which were party to the Human Rights Convention: see also Garnett, “The Precarious Position of Embassy and Consular Employees in the United Kingdom” (2005) 54 ICLQ 705, 707. Further support was provided by the Court of Justice of the European Union which had had to consider whether a state was entitled to immunity from an employment claim by a domestic worker of an embassy in Mahamdia v People’s Democratic Republic of Algeria (Case C-154/11) [2013] ICR 1, paras 53–56. The role of that court with regard to international law was just like that of a domestic court; namely, it might be necessary to decide directly or indirectly a question of international law in order to decide disputes properly brought before it. Accordingly, a rule of the breadth of section 16(1)(a) was not required by international law, and its application to the present claims was incompatible with article 6. The court also considered that section 4(2)(b) was discriminatory on grounds of nationality, was a disproportionate limitation contrary to article 6, and that no such limitation to the exception to immunity was required by customary international law; it thus infringed articles 6 and 14. The court would make a declaration of incompatibility pursuant to section 4(2) of the Human Rights Act 1998 in respect of the two sections in their application to the claims.

On the question whether article 47 of the Charter of Fundamental Rights of the European Union had “horizontal” direct effect so that the claimants could rely on it, the Court of Justice had not made clear which rights and principles contained in the Charter might be capable of having that effect and which would not. However, article 47 had to fall into the category of Charter provisions which had that effect. The right to an effective remedy guaranteed by article 47 was a general principle of European Union law. Although it was now clear that English courts retained a discretion in relation to the Charter not to disapply domestic statutes which were incompatible with an European law right in certain circumstances (R (Chester) v Secretary of State for Justice [2014] AC 271, paras 72–74), the scope of the disapplication in the present case was clear, unlike the position in the Chester case. The sections of the 1978 Act would be disapplied to the extent necessary to enable employment claims (other than for recruitment, renewal or re-instatement) falling within the scope of EU law by members of the service staff, whose work did not relate to the sovereign functions of the mission staff, to proceed.