18 October, 2017
UKSC dismisses Secretary of State’s appeal on whether employees of embassies could have the provisions of the State Immunity Act 1978 disapplied to allow bringing EU law based employment claims before Employment Tribunal
Benkharbouche v Secretary of State for Foreign & Commonwealth Affairs; Libya v Janah  UKSC 62
The UK Supreme Court unanimously dismissed the Secretary of State’s appeal and affirmed the order of the Court of Appeal in a judgment handed down today.
The case concerned the Convention compatibility, and separately the EU law compatibility of the granting of immunity from suit to foreign embassies (under the provisions of the State Immunity Act 1978) against all and any claims brought against them before the Employment Tribunal by former employees. The Court held that in order to provide an effective remedy to the employees against their former employers as required by Article 47 of the EU Charter of Fundamental Rights the relevant provisions of the State Immunity Act 1978 had to be disapplied, but only in relation to such of their claims which fell within the ambit of EU law (claims for discrimination, harassment and breach of the Working Time Regulations). These were remitted to proceed before the Employment Tribunal and be determined on their merits. But in respect of those claims which were based solely on national law without an EU law underpinning (failure to provide payslips or a contract of employment, unpaid wages, failure to pay the national minimum wage and unfair dismissal) the employees continued to be barred from running them by 4(2)(b) and 16(1)(a) of the State Immunity Act 1978, notwithstanding that the Court found that their exclusion from the employment tribunal in respect of these claims was Convention incompatible (both under reference to Article 6 ECHR on its own and Article 6 ECHR read with Article 14 ECHR), and made a declaration to this effect under Section 4 of the Human Rights Act 1998.
The high doctrine of Parliamentary sovereignty proclaimed in Miller means that without an EU law element the claimants in Benkharbouche had no effective remedy. And Clause 5(4) provides bluntly that “The Charter of Fundamental Rights is not part of domestic law on or after exit day” a provision softened only by the immediately succeeding terms of Clause 5(5) which provide that:
“(5) Subsection (4) does not affect the retention in domestic law on or after exit day in accordance with this Act of any fundamental rights or principles which exist irrespective of the Charter (and references to the Charter in any case law are, so far as necessary for this purpose, to be read as if they were references to any corresponding retained fundamental rights or principles).”
This case follows from the companion case of UNISON where the imposition of fees by the executive re access to employment tribunals was struck down as unlawful and in breach of the common law constitutional right of access to the court, highlighting the EU law effective remedy.
Ampersand’s Aidan O’Neill QC acted for the intervener, the AIRE centre.