Introduction

Judgment of the Supreme Court is handed down today in the case of Janah v Secretary of State for Foreign and Commonwealth Affairs (“SSFCA”) and Libya, and Benkharbouche v SSFCA. ATLEU represented the two Claimants, Ms Janah and Ms Benkharbouche, two domestic workers who sought to stop state immunity applying to their claims. The Claimants, both Moroccan nationals, were employed directly by Libya and Sudan respectively. They claimed that they were paid grossly under the national minimum wage, forced to work unlawful hours, unfairly dismissed and (in Ms Janah’s case) discriminated against on racial grounds.

The Supreme Court Judgment

In its Judgment the Supreme Court concludes that the State Immunity Act (“SIA”) is unlawful since it prevents all employees of foreign embassies bringing claims for compensation against employer states regardless of the nature of the employee’s work. In applying immunity so widely the SIA goes beyond the requirements of international law which generally requires immunity only in cases where the employee exercises sovereign authority or where some special characteristic is present e.g. the claim relates to recruitment or reinstatement. Since it went beyond what was required by international law, the application of immunity to the Claimants amounted to an unlawful breach of Article 6 European Convention of Human Rights (“ECHR”) (the right to a fair trial) as well as to the similar provisions of Charter of Fundamental Rights of the European Union (“CFREU”) (Article 47).

In addition, in preventing the Claimants from bringing claims on the ground that they were neither British nationals nor permanently resident in the UK at the start of their employment, in a manner that went beyond the requirements of international law, the SIA unlawfully discriminated against the Claimants on the grounds of nationality, contrary to Article 14 ECHR.

Impact on Ms Janah’s and Ms Benkharbouche’s claims

The breach of Article 47 CFREU means that relevant provisions of State Immunity Act 1978 do not apply to their claims based on EU law such that the Claimants can litigate these claims in the employment tribunal (i.e. claims of unlawful race discrimination, harassment on racial grounds and breaches of working time regulations). In respect of non-EU law rights, the Supreme Court re-affirmed the Court of Appeal’s “declaration of incompatibility” under Human Rights Act 1998, stating that the relevant provisions of the State Immunity Act are contrary to the Claimants’ right of access to the court and are discriminatory.

Emmy Gibbs of ATLEU said:

“These appeals are hugely significant. Overseas domestic workers working in embassies are exceptionally vulnerable to exploitation and abuse including trafficking. We are delighted that the Supreme Court has recognised that the UK’s State Immunity Act is too generous to foreign states, preventing employees, including many vulnerable workers, accessing justice and going well beyond the requirements of international law.

It’s a shame that the Foreign and Commonwealth Office sought to defend the State Immunity Act rather than welcoming the opportunity to review the law in this area.

The case demonstrates the importance of having constitutional checks that are capable of identifying and correcting outdated legislation. Here this was provided by the Charter of Fundamental Rights of the European Union (“CFREU”): the Human Rights Act could provide no automatic remedy beyond a declaration that Ms Janah’s rights have been breached. It is critical that, during the process of withdrawal from the EU, the government takes steps to fill the vacuum left by the CFREU.

We hope the government will now act fast to change the law, bringing it into line with its international obligations.”

Ms Mina Janah, the principal Claimant in the case, said:

“I worked hard for many years in this country. I was paid very poorly and was dismissed unfairly. I have waited a long time to get redress for that. The case has taken many years of my life and I am sad that the government has fought it so hard. But I am delighted that the Supreme Court has recognised that people like me should be able to go to court to get compensation for the wrongs they have suffered.”

Background information

About ATLEU

ATLEU is a specialist charity providing legal representation to victims of trafficking and labour exploitation. We help victims to obtain safety, recovery and redress.

Overseas domestic workers

Each year, 16-17,000 "potentially vulnerable" domestic workers are given entry clearance to the UK. Of these, some 200-300 annually are employed by diplomats or within foreign embassies. In 2003-2011, approximately 76% of these workers were women. They are characteristically required to carry out a range of tasks including cleaning, cooking, providing childcare and laundry services. Male domestic workers are often brought to the UK as drivers, cooks and as private security guards.

Domestic workers predominantly originate from Africa and Asia, especially the Philippines, India and Indonesia (78% between 1994-2006). The majority of workers enter the UK from a country that is not their country of origin, in particular from Saudi Arabia, Bahrain, Oman, Qatar, and UAE.

Many of these workers, work under a "kafala" arrangement, which is widespread in the Gulf region. "Kafala" legally ties migrant workers to their employers so the workers are not permitted to leave their jobs or the country without their employer's permission. In this way, it bears the features of modern slavery. That exploitative arrangement is being exported from the Gulf to the UK.

The United Nations Special Rapporteur on contemporary forms of slavery has stated:

“Owing to [their] vulnerabilities, domestic workers are often subject to unfair and exploitative labour practices. Some are paid way below minimum wage standards or not at all, while others are confronted with the arbitrary deduction or withholding of wages. Many domestic workers are expected to live with their employers, yet are only offered substandard or degrading living conditions. Live-in workers might be expected to work 16-18 hours a day, be always on call and forego regular rest days and vacation. They frequently face restrictions on their freedom of communication and movement. Physical, emotional and sexual abuse is also common.”

James Ewins QC, the Government-appointed independent reviewer of the arrangements for the Overseas Domestic Worker Visa, confirms that this description applies equally to overseas domestic workers in the UK. He notes that the lives of overseas domestic workers currently exist "in the relative shadows"; that overseas domestic workers are "universally acknowledged to be in a position of special vulnerability" (the reasons for this including employment in an "informal economy" and employment by diplomatic agents) and that given that the exploitation of domestic workers is "hidden abuse", akin to domestic violence and child abuse, "what is currently seen and known is highly unlikely to be the full extent of the abuse. In reality ... it is more likely to be 'the tip of the iceberg".

Specific examples of the abuse of domestic workers cited by Mr Ewins in his report include physical and sexual violence, threats, psychological, emotional and verbal violence, isolation, food deprivation, sleep deprivation, denial of private life and intimacy, excessive working hours, confiscation of identity documents, non-payment of wages or grossly inadequate wages, no access to health or medical care, limited freedom of movement, threat of deportation, and assertions by the employer of their impunity.

Emmy Gibbs
Solicitor for the Claimants
Anti-Trafficking and Labour Exploitation Unit
18 October 2017