Janah v Libya and Benkharbouche v Embassy of the Republic of Sudan

Mr Justice Langstaff (sitting as President of the EAT) has found that certain provisions of the State Immunity Act 1978 (“SIA”) breach Article 6 ECHR and held that the Charter of Fundamental Rights of the European Union (“CFREU”) requires those provisions to be disapplied insofar as they bar employment law claims that are within the material scope of EU law.

In these two joined appeals, the Claimants were domestic workers who had brought claims against the Libyan and Sudanese Embassies in London. Their claims were barred by section 16 and/or section 4 of the SIA but they argued that the barring of their claims was a disproportionate restriction on their right of access to a court or tribunal under Article 6 EHCR (and the parallel protections under Article 47 of the CFREU).

The EAT agreed, holding that section 16(1)(c) and section 4(2) of the SIA are contrary to Article 6 ECHR insofar as they act to bar employment law claims against States brought by low level employees such as the Claimants in these cases (paras 33-34, 36-37).

The EAT found that it was not possible to achieve an ECHR-compliant reading of the SIA under section 3 of the Human Rights Act 1998 (“HRA”) (paras 41-42). However, primary legislation (in this case, the SIA) is to be disapplied in a dispute between two private parties where its application would breach a party’s rights under the CFREU (paras 43-70). This applies where the substantive rights at issue are within the material scope of EU law (in these cases, this included a discrimination claim and working time claims). In relation to those parts of the claims falling outside the material scope of EU law (unfair dismissal and minimum wage claims), the Claimants’ remedy would be to appeal to the Court of Appeal to seek a declaration of incompatibility under section 4 of the HRA.

The EAT’s conclusion that the Claimants’ rights under the CFREU required primary legislation to be disapplied (in circumstances where no such remedy would have been available under the HRA) is likely to be of wider significance.

Paul Luckhurst (instructed by the Anti-Trafficking and Labour Exploitation Unit) acted for Ms Janah and Ms Benkharbouche.