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

The Court of Appeal (Lord Dyson MR and Arden and Lloyd Jones LLJ) has found that certain provisions of the State Immunity Act 1978 (“SIA”) breach Articles 6 and 14 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) and also discriminatory, contrary to Article 14 ECHR.

The Court of Appeal agreed. It held that section 16(1)(c) of the SIA is contrary to Article 6 ECHR because it bars employment law claims against States brought by low level employees (such as the Claimants in these cases) despite the fact that there is no rule of international law requiring such claims to be barred. The Court further held that section 4(2) of the SIA was contrary to Articles 6 and 14 ECHR because it prevented claims by non-UK nationals, or those without habitual residence in the UK when their contract was made, in circumstances where there was no rule of international law requiring such a provision and no other compelling justification for this differential treatment.

The Court of Appeal 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”) and granted a declaration of incompatibility under section 4 HRA.

Furthermore, in relation to the Claimants’ employment law claims that were within the material scope of EU law (a discrimination claim and working time claims), the Court of Appeal held that the SIA was to be disapplied as its application would breach the Claimants’ rights under the CFREU. The Court of Appeal’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 of considerable significance in relation to the status and effect of the CFREU in the United Kingdom.

The full judgment can be read here: http://www.bailii.org/ew/cases/EWCA/Civ/2015/33.html 

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