A Shift In The Boundaries Of State Immunity

A recent decision of the Employment Appeal Tribunal (EAT) has significantly reduced the scope for embassies and high commissions to claim immunity in relation to claims brought by their locally engaged staff in the UK. This will have important implications for how such employees are treated in the future.

Embassies and high commissions have generally been immune from the jurisdiction of the courts and tribunals in UK, as representatives of foreign sovereign states. In particular, employment tribunals in the UK did not have jurisdiction to consider claims brought by locally engaged staff of embassies and high commissions unless such claims involved some form of personal injury to the member of staff. The decision in Benkharbouche v Embassy of the Republic of Sudan and another case has fundamentally altered this position.

These combined cases involved a cook, Ms Benkharbouche, employed by the UK Sudanese embassy, and Ms Janah, a member of domestic staff employed at the UK Libyan embassy. These individuals brought a number of employment related claims including unfair dismissal, discrimination, unpaid wages and holiday pay. The claims were initially rejected on the basis that the Sudanese and Libyan embassies were immune from the jurisdiction of the UK courts under the provisions of the State Immunity Act 1978 (SIA).

Ms Benkharbouche and Ms Janah appealed the decision to reject their cases on the basis that the SIA prevented their access to justice and was therefore contrary to their right to a fair trial under the European Convention on Human Rights, as well as amounting to a breach of a similar right under the Charter of Fundamental Rights of the European Union. The EAT ruled that the SIA could not be amended or disapplied to enable the individuals' claims to proceed. However, the EAT did decide that as non-discrimination was a general principle of EU law, national laws, such as the SIA, which conflicted with it must be set aside. This meant that Ms Benkharbouche's and Ms Janah's claims for discrimination and holiday pay were allowed to proceed, because these claim originally derived from EU legislation.

This decision exposes embassies and high commissions to a much greater threat of employment claims from their locally...