Two women dismissed from domestic jobs at foreign embassies in London wanted an employment tribunal to hear their claims. The central question was whether international law required the UK to give a foreign state immunity even when the employee cooked, cleaned or kept house. The answer mattered because the remedy available in 2017 depended on the legal basis of each claim.
The claims and the statutory bar
Ms Janah was recruited in Libya to work at its embassy in London. She cooked, cleaned and served meals. After dismissal she brought claims including discrimination, harassment, breaches of working-time rules and failure to pay the minimum wage.
Ms Benkharbouche worked as a housekeeper and cook for the Sudanese ambassador. She too sought wages and holiday pay and challenged her dismissal. Both women were Moroccan nationals.
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It was common ground that the 1978 Act gave Libya immunity against Ms Janah and Sudan immunity against Ms Benkharbouche. Section 4(2)(b) makes a state immune in employment proceedings if, when the contract was made, the employee was neither a United Kingdom national nor habitually resident here. Section 16(1)(a) makes a state immune in proceedings about the employment of members of a diplomatic mission, which includes domestic staff. Both provisions applied to Ms Janah. Section 16(1)(a) applied to Ms Benkharbouche; there were no findings on whether section 4(2)(b) also applied to her. Different Employment Tribunal judges dismissed both claims on the ground of immunity.
The appeals
The Employment Appeal Tribunal heard the cases together. It held that the two sections should be disapplied so far as they stopped Ms Janah bringing EU-law claims, because they conflicted with the right to an effective remedy in article 47 of the EU Charter. The discrimination, harassment and Working Time Regulations claims were allowed to proceed. The Court of Appeal affirmed that disapplication and also made a declaration of incompatibility covering all the claims, domestic and EU. Sudan did not appeal. Libya was not permitted to pursue its appeal because it failed to provide security for costs, and Ms Benkharbouche did not appear. The effective parties were the Secretary of State, appealing in both cases, and Ms Janah.
Access to a court and international law
The objection was that the statutory bars were incompatible with article 6 of the European Convention on Human Rights. Article 6 guarantees a fair hearing in the determination of civil rights and includes a right of access to a court. That right is not absolute: a restriction may be justified if it pursues a legitimate aim by proportionate means and does not impair the essence of the right. The Strasbourg court has treated a successful claim to state immunity as engaging article 6, but as justified where the immunity reflects generally recognised international law, and as a violation where the immunity claimed had no foundation in international law.
The Secretary of State argued that a tenable view of international law could justify the British restrictions. The Court had to decide what international law actually required. Extending immunity beyond that point was a domestic choice which needed justification.
Immunity only for sovereign acts
Customary international law requires a widespread, representative and consistent practice of states, accepted as a legal obligation. Lord Sumption concluded from the history of state immunity that there has never been a sufficient consensus to make absolute immunity a customary rule. The only consensus about its scope is the restrictive doctrine: a state is immune for acts done in the exercise of sovereign authority, but not for acts of a private-law character. The classification depends on the juridical character of the act, not the state’s purpose, unless that purpose shows what the act legally was.
In employment cases, the classification usually depends on the employee’s functions. Diplomatic agents perform inherently governmental work. Some administrative or technical staff may be close enough to that work for their employment to be sovereign. Lord Sumption found it difficult to see the employment of purely domestic staff as anything but a private-law act, of a kind a private person might arrange. These claimants’ employment was clearly not an exercise of sovereign authority, and nothing in their alleged treatment engaged their employers’ sovereign interests. They were not seeking reinstatement, which might have restricted the sending state’s freedom to choose its staff. Libya and Sudan were therefore not entitled to immunity under customary international law.
Some aspects of employment can still attract immunity even if the contract itself was not a sovereign act, such as dismissal for state security, or a claim dictating recruitment policy or requiring specific reinstatement. Territorial connections can also matter, and there is support for immunity in claims by a state’s own nationals. There is no sufficient consensus, however, for immunity over embassy staff as such, or over employees from third countries, regardless of the private-law character of the work.
Why these two sections failed
Section 4(2)(b) turned on nationality and habitual residence when the contract was made. Those facts did not establish that employing the claimant was a sovereign act. Nor did the UK’s interest in regulating its labour market stop at its own nationals.
Section 16(1)(a) applied to embassy employees whatever their duties. The right of a sending state to appoint its staff freely might prevent an order to reinstate someone. A claim for wages or damages presented a different question because the state could keep its choice of staff.
The Convention, the Charter, and the remedies
Because international law did not require immunity, article 6 was engaged, and the two sections were incompatible with it so far as they conferred immunity here. Section 4(2)(b) also discriminates by nationality. Ms Janah relied on article 14 read with article 6, but Lord Sumption held that this added nothing: if immunity does not justify denying access under article 6, it does not justify a discriminatory denial. The incompatibility of section 4(2)(b) therefore also arose under article 6 read with article 14.
In 2017, article 47 of the EU Charter gave a right to an effective remedy where the claim fell within the scope of EU law. The tribunal could disapply the conflicting statute for those claims. A declaration under the Human Rights Act, by contrast, left the statute in force.
Verdict: The Court unanimously dismissed the Secretary of State’s appeal. Both cases returned to the tribunal for the claims based on EU law. The domestic claims remained subject to the statutory bar, with a declaration of incompatibility. No award of wages or compensation was made.
Source: Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs [2017] UKSC 62
