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State Immunity

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Can sections 4(2)(b) and 16(1)(a) of the State Immunity Act 1978 protect embassies from Employment Tribunal claims brought by domestic staff in the UK?

In Benkharbouche v Secretary of State for Foreign & Commonwealth Affairs & Anor the Supreme Court held that no, these sections of the State Immunity act are no protection and hence affirmed the judgments made by the Court of Appeal and the EAT.

In this case the Claimants were purely domestic workers in the UK embassies in London of Libya and Sudan respectively. Some of the claims made were based on domestic English rights, such as unfair dismissal, and others derived from EU law such as discrimination.

It was held by the Supreme Court that there was no basis in customary international law for the application of state immunity in an employment context where the acts were of a private character. Denying access to a court would have been incompatible with Article 6 of the European Convention on Human Rights and Article 47 of the EU Charter of Fundamental Rights. The case was referred back to the employment tribunal.

Written by

Lorraine Emery
25th October 2017