Foreign nationals working at embassies and high commissions in the UK can bring employment claims, provided their complaint is based on EU law, the Supreme Court has ruled in a judgment that clarifies rules surrounding state immunity.
In Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs, the court ruled today in favour of two former employees at the Sudan and Libyan embassies, upholding decisions by the Court of Appeal and the Employment Appeal Tribunal.
The case centres on a claim brought by two Moroccan nationals, referred to in the judgment as Ms Jadah and Ms Benkharbouche.
The women took the Sudanese and Libyan embassies to an employment tribunal after being dismissed. Part of their complaint centred on EU law while some was based on law in England and Wales. Both embassies responded to the complaints by claiming state immunity.
Under the State Immunity Act 1978, a foreign state is immune from the jurisdiction of a UK court in claims based on the state’s employment of the claimant where the claimant (i) at the time of complaint is neither a UK national nor resident or (ii) if they work for the state’s diplomatic mission.
The Employment Tribunal dismissed both claims, accepting the embassies’ arguments.
However, on appeal, the Employment Appeal Tribunal accepted the claimants’ argument that the 1978 act was incompatible with the EU Charter of Fundamental Rights and Freedoms.
The Court of Appeal upheld that judgment, prompting an appeal from the foreign secretary.
Today the Supreme Court ruled in favour of the employees clarifying that the claims that centred on EU law should be allowed to proceed.
‘EU law prevails over English law in the event of a conflict, so those sections of the 1978 act cannot bar the claims which are based on EU law,’ Lord Sumption’s lead judgment said.
The claims based on EU will now be remitted to the employment tribunal to be determined at trial.
Nicholas Le Riche, employment partner at London firm Bircham Dyson Bell, said: ‘The decision has crystallised the right of embassy and high commission employees based in the UK to bring claims in the employment tribunals, which are based on EU law. As a result of the judgment, claims which have been put on hold pending the decision may now proceed and embassies and high commissions could be exposed to a much greater threat of employment claims from their locally employed staff.’