Supreme Court: Benkharbouche v. SoS for Foreign & Commonwealth Affairs and SoS for Foreign & Commonwealth Affairs and Libya (Appellants) v. Janah [2017] UKSC 62, 18 October 2017

Benkharbouche v. Secretary of State for Foreign & Commonwealth Affairs and Secretary of State for Foreign and Commonwealth Affairs and Libya v. Janah [2017] UKSC 62, 18 October 2017

The case concerns Ms Janah, a Moroccan national who was employed as a domestic worker by the Libyan Embassy in London, and Ms Benkharbouche, also a Moroccan national, who was employed as a domestic work by the Sudanese Embassy in London.  Both were dismissed from their employment and brought claims before the Employment Tribunal against Libya and Sudan, respectively.  Their claims were at first instance dismissed by separate Employment Tribunals by application of the State Immunity Act 1978 (“SIA”), pursuant to which a foreign State is immune from employment claims where (i) at the time the contract of employment was made the claimant was neither a UK national nor a UK resident (s. 4(2)(b) of the SIA); or (ii) the claimant worked for the foreign State’s diplomatic mission (s. 16(1)(a) of the SIA).  The cases were then heard together before the Employment Appeal Tribunal which went on to declare that sections 4(2)(b) and 16(1)(a) of the Act should be disapplied so far as they prevented Ms Janah from bringing claims based on EU law, on the ground that they were contrary to the right of access to a court guaranteed by article 47 of the EU Charter.

The case was subsequently heard and decided by the Court of Appeal, but it was only Libya who appeared in the Court of Appeal.  The Court of Appeal Judgment is discussed in an earlier post and is available here.  Sudan elected not to participate in the proceedings before the Court of Appeal and did not appeal to the Supreme Court.  Ms Benkharbouche was represented in the Court of Appeal, but did not appear before the Supreme Court.  By contrast, Libya did participate in the Court of Appeal, and although it was granted permission to appeal to the Supreme Court it was not permitted by the Supreme Court to pursue the appeal because it failed to comply with an order by the Court for security for costs.  In the circumstances, it was left to the Secretary of State to make certain arguments in the Supreme Court against those made by Counsel for Ms Janah.

In the Supreme Court, Counsel for Ms Janah maintained the argument that the provisions of the SIA were incompatible with Article 6 of the ECHR and Article 47 of the European Charter of Fundamental Rights since they constituted breaches of the right of an individual to have access to a court to determine claims.  More specifically, since the immunities being conferred by the SIA on Libya and Sudan were no longer required as a matter of obligation by customary international law then the breach of right of access to a court was no longer justified.

The Supreme Court agreed and dismissed the Secretary of State’s appeal.  Accordingly, the Supreme Court went on to uphold the Court of Appeal’s decision which had made a “declaration of incompatibility” in relation to ss. 4(2)(b) and 16(1)(a) of the SIA and which had disapplied these provisions to those parts of the claims which fell within the scope of EU law – claims derived from EU law for discrimination, harassment and breach of the Working Time Regulations – thereby allowing these claims to proceed against Libya and Sudan.

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