Embassy work rules immunity ‘incompatible’ with EU rights

UK laws which let two embassies use diplomatic immunity to block employment rights cases breached European law, the Court of Appeal has ruled.

In a case brought by former workers at the Sudanese and Libyan embassies, the court said denying access to employment laws breached workers’ human rights.

The court “disapplied” two sections of the State Immunity Act, so workers can now bring legal claims.

The workers claimed unfair dismissal and breaches of working time rules.

The two Moroccan nationals, cook Fatima Benkharbouche and domestic worker Minah Janah worked at the Sudanese and Libyan embassies in London respectively.

They were both sacked and both are claiming unfair dismissal, failure to pay the minimum wage and breach of the 1998 Working Time Regulations. Ms Janah is also claiming arrears of pay, racial discrimination and harassment.

The embassies claimed immunity from these cases.

But in their judgement, three Court of Appeal judges said this was “incompatible” with article six of the European Convention on Human Rights (ECHR).

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Clive Coleman, BBC legal affairs correspondent

This ruling is very significant because it underlines the power of European Union law to trump primary legislation passed by the UK Parliament.

There is a huge public debate about whether and to what extent judgments from the European Court of Human Rights erode parliamentary sovereignty.

But under human rights law our courts can only declare primary legislation incompatible with the European Convention on Human Rights.

EU law is much more powerful. There is no wriggle room.

The Court of Appeal has illustrated that by saying that domestic courts must now ignore provisions of the State Immunity Act in upholding the rights of workers exploited in foreign embassies, if those rights are enshrined in EU law.

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The court also said the workers were entitled to “rely on article 47 of the EU Charter” to be allowed to bring their cases.

It said the two sections of the State Immunity Act were a “violation” of those EU rights, and the court was therefore “bound to disapply” those sections – meaning UK courts should ignore them.

It also made a “declaration of incompatibility” – a “signal” to Parliament that it should consider amending immunity legislation.

The court also said the case showed a “difference of treatment on grounds of nationality” – in breach of article 14 of the ECHR.

‘Culture of impunity’

Emily-Anna Gibbs, of the Anti Trafficking and Labour Exploitation Unit (ATLEU), a charity which represents Ms Janah and Ms Benkharbouche, said the case was “hugely significant”.

“Overseas domestic workers working in diplomatic households and embassies are exceptionally vulnerable to exploitation and abuse including trafficking,” she said.

“It is regrettable that the Foreign and Commonwealth Office, in their arguments before the Court of Appeal, took the side of the defendants, arguing to perpetuate a culture of impunity and to entrench the vulnerability of many.”

Ms Gibbs said she was “delighted” the court had recognised that UK immunity was “too generous”, adding: “We hope the government will act fast to change the law.”

Mohamed Shaban, of MS Legal Solicitors, representing Libya, said the Libyan government was “considering the judgement”.

“Nothing in this judgment suggests any wrongdoing by Libya,” he said.

“The Libyan government worked alongside the British Foreign Office and takes credit for assisting the Court of Appeal in clarifying the law on state immunity and human rights.

“The case now goes back to the employment tribunal, where Ms Janah’s claim will be defended by the Libyan Embassy.”