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Domestic workers use EU law & the ECHR to get a fair trial

6 February 2015

State Immunity Act infringes fair trial rights for domestic workers in Sudanese and Libyan embassies, Court of Appeal held today.

February 5, 2015.

The AIRE Centre welcomes the judgment handed down by the Court of Appeal in Benkharbouche & anr -v- Embassy of the Republic of Sudan & Ors, in which we intervened with the assistance of Aidan O’Neill QC (Scot) at Matrix Chambers instructed by Freshfields Bruckhaus Deringer LLP, acting pro bono. The decision held that provisions of the State Immunity Act 1978 (“SIA”) breached Ms. Benkharbouche and Ms. Janah’s rights to a fair trial under Article 6 of the European Convention on Human Rights (“ECHR”) and Article 47 of the Charter of Fundamental Rights of the European Union (“EU Charter”).

Background

Fatima Benkharbouche and Minah Janah are Moroccan nationals, who were employed as domestic staff at the Sudanese and Libyan embassies in London, respectively.

Both were dismissed from their jobs and subsequently brought claims against their employers claiming unfair dismissal and a breach of the Working Time Regulations 1998. Ms. Benkharbouche further claimed that the Sudanese embassy failed to pay her the minimum wage and Ms. Janah claimed arrears of pay, as well as racial discrimination and harassment.

The embassies, relying on the SIA, argued that they were immune from such claims.

The Court of Appeal had to decide whether a member of the service staff of a foreign diplomatic mission to the UK could bring proceedings in the UK, against an employer state, asserting employment rights, or whether such claims are barred by state immunity. In doing so the judges had to consider whether the SIA was compatible with Article 6 ECHR and Article 47 EU Charter, and if not, what consequences should follow.  

Section 1 SIA provides a general immunity for States against the jurisdiction of UK courts. State immunity has a long history in international law, originally touted to protect state sovereignty, however recent developments have been placing more restrictions on this expansive doctrine. 

Section 4 SIA itself creates an exception to this immunity in contracts for employment made in the UK. Unfortunately for the claimants, under the same section it states that these exceptions will not apply to individuals who are neither UK nationals nor habitually resident in the UK – the situation that both Ms. Benkharbouche and Ms. Janah found themselves in.

A further provision under Section 16 SIA also states that the exceptions under Section 4 SIA will not apply to ‘members of a mission’, and as service staff, both the claimants are considered members of the mission.

In our intervention, we submitted that Section 4 and Section 16 of the SIA, by preventing Ms. Benkharbouche and Ms. Janah from bringing claims against the embassies, infringed their right to an effective remedy and their right to a fair trial, as enshrined under Article 47 of the EU Charter.

We argued that as their claims fell squarely within the scope of EU law, the claims must therefore be determined in conformity with the general principles of EU law and the rights in the EU Charter.

The Judgment

The Court of Appeal decided that Ms. Benkharbouche and Ms. Janah’s fair trial rights had been breached by the SIA.

Specifically they decided that the provision under Section 16 (1)(a) SIA, prohibiting members of a mission to bring a claim, breached Article 6 of the ECHR and that Section 4(2)(b) SIA, by refusing to allow the claimants to rely on the exception because they were neither UK nationals nor habitually resident in the UK at the time they made the contracts, breached both Article 6 of the ECHR and Article 14 ECHR, the prohibition against discrimination. The Court would therefore not apply the SIA to these claims.

The judges also held that they could not interpret section 16(1)a SIA compatibly with the rights under the ECHR and therefore proposed to make a declaration of incompatibility.

What this means for Ms. Benkharbouche and Ms. Janah is that they will now be able to bring claims against the embassies in the Employment Tribunal.

 

For further queries contact:

Audrey Cherryl Mogan, Legal Officer & Communications Manager, The AIRE Centre 

Tel: +44(0)207 831 4276 / +44(0)785 077 2730/ amogan@airecentre.org  

 

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