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The Supreme Court has unanimously 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 Supreme Court 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 customary international law requiring such claims to be barred. Customary international law grants immunity only in cases where the functions of the employee involve the exercise of sovereign power or if the case engages some other sovereign interest of the State (such as dismissal for reasons of State security).

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 customary international law requiring such a provision.

Since it was not possible to achieve an ECHR-compliant reading of the SIA under section 3 of the Human Rights Act 1998 (“HRA”) the Supreme Court upheld the declaration of incompatibility under section 4 HRA that had been granted by the Court of Appeal ([2015] EWCA Civ 33).

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 Supreme Court held that the SIA was to be disapplied as its application would breach the Claimants’ rights under the CFREU.

The full judgment can be read here.

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