In two judgments handed down on Friday 4 October the Employment Appeal Tribunal (EAT) has considered the application of state and diplomatic immunity to claims brought by domestic workers in the employment tribunal.
Benkharbouche v Sudan, Janah v Libya UKEAT/0401/12/GE
ATLEU lawyers and Paul Luckhurst of Blackstone Chambers represented Ms Benkharbouche and Ms Janah in claims brought against Sudan and Libya respectively. Claims were brought for unfair dismissal, breach of working time regulations, unlawful discrimination and failure to pay the national minimum wage. The Respondents raised state immunity as a defence to the claims.
The Claimants argued that, following the cases of Sabeh el-Leil v France (2012) 54 EHRR 14 and Cudak v Lithuania (2010) 51 EHRR15, the application of immunity to their claim against the Respondent States amounted to a disproportionate interference with their rights under Article 6 of the European Convention on Human Rights (“ECHR”).
The EAT concluded that the application of immunity to these claims did amount to a breach of both Article 6 ECHR and of Article 47 of the Charter of Fundamental Rights of the European Union (“CFREU”).
In respect of the claims which fell within the “material scope of European law”, the breach of Article 47 CFREU required that the relevant provisions of the State Immunity Act 1978 be disapplied.
However, in respect of other claims – being the claims for unfair dismissal and failure to pay the national minimum wage – the EAT found that it was not possible to “read down” the legislation under section 3 of the Human Rights Act 1998 (“HRA”) so as to provide a Convention compliant reading. Rather, the Claimants would need to seek a declaration of incompatibility in the Court of Appeal under section 4 HRA.
Permission to appeal to the Court of Appeal was granted to all parties.
Reyes and Rohaetin v Al-Malki and Al Malki UKEAT/0403/12/KN
The same team represented Ms Reyes and Ms Rohaetin in claims against a Saudi Arabian diplomat and his wife. The Claimants, who were employed successively in the Respondents’ private household, raised similar complaints of mistreatment and brought claims in the employment tribunal for unfair dismissal, failure to pay the national minimum wage and breach of working time regulations.
The Respondents raised the defence of diplomatic immunity under Diplomatic Privileges Act 1964 (“DPA”).
The claims were linked by the employment tribunal. At a pre-hearing review on the issue of immunity the Claimants argued that the application of immunity amounted to a breach of their rights under Article 6 ECHR and of the UK’s positive obligations under Article 4 ECHR (which was said to be engaged because the Claimants alleged that they had been trafficked). The employment tribunal determined that the application of immunity did constitute a breach of Article 6 ECHR; that it was possible to “read down” the relevant provisions of the DPA in such a way that immunity did not apply; but that it did not amount to a breach of Article 4 ECHR.
The EAT disagreed with the employment tribunal on the approach to Article 6, taking the view that the Strasbourg jurisprudence (Cudak v Lithuania, Sabeh el-Leil v France) did not lead to the same result in this case since the existing Strasbourg authorities principally concerned State and not diplomatic immunity. The EAT agreed with the employment tribunal that the application of immunity did not amount to a breach of Article 4 ECHR.
Permission to appeal to the Court of Appeal was granted.