EU employment rights law trumps diplomatic immunity – what next?

15 October 2013 by

European-Union-Flag_1Benkharbouche v Embassy of the Republic of Sudan (Jurisdictional Points: State Immunity) [2013] UKEAT 0401_12_0410 4 October 2013 – read judgment

These appeals, heard at the same time, raise the question whether someone employed in the UK by a foreign diplomatic mission as a member of its domestic staff may bring a claim to assert employment rights against the country whose mission it is, despite being met by an assertion of State Immunity under the State Immunity Act 1978. The EAT regarded itself bound by the supremacy of EU law to disapply the SIA, despite the fact that it had no jurisdiction to do so under the 1998 Human Rights Act.

This is the first time that the full force of the rights contained in the EU Charter of Fundamental Rights and Freedoms has made itself felt in a domestic dispute between private parties (although the embassies themselves are state institutions, as an employment dispute the matter is one of private law only). If upheld on appeal, this ruling will have consequences that extend far beyond the somewhat esoteric area of the immunity of diplomatic missions, and will make the effect of the Human Rights Act look puny by comparison (as pointed out by Joshua Rozenberg  in his post on this case).

Factual and Legal Background

A cook at the Sudanese embassy, and a member of the domestic staff of the Libyan embassy, both made claims arising out of their employment. They were met with pleas of State Immunity, which were upheld by two separate Employment Tribunals. They appealed on the basis that the plea of immunity denied them access to court to enforce their rights, relying upon the decisions of the Strasbourg Court in Cudak v Lithuania (2010) 51 EHRR  15, and  Sabeh el Leil v France (2012) 54 EHRR 14  to establish that this had been in breach of Article 6 of the Convention.
They contended in this appeal that, to the extent the claims fell within the material scope of EU law, the SIA should be disapplied.  Although the HRA dealt with the approach of courts and tribunals to alleged breaches of the ECHR, the EU Charter was now recognised as applicable in the UK, and recognised general principles of fundamental importance to the EU where matters fell within the material scope of EU law.  As the appellants’ claims were under the Working Time Directive and also fell under the prohibition on racial discrimination, they were well within the scope of EU law.  Therefore Article 47 of the EU Charter – which recognises the same principle as contained in Article 6 ECHR – was applicable.

Langstaff J, sitting as President of the EAT, held himself was bound by EU law  to disapply domestic law in conflict with these principles even though the dispute was not one of public law.

Reasoning behind the decision

1) The European Convention on Human Rights

The “pure” human rights argument, ie that based on the Human Rights Act 1998,  did not help the appellants for a number of reasons. The Tribunal were not bound to apply human rights law against the effect of the SIA, simply because Section 3(2)(b) of the HRA makes it clear that the Tribunal’s interpretation under that Act does not affect “the validity, continuing operation or enforcement of any incompatible primary legislation”.

Article 6 of the Convention could not avail the appellants, despite the obligation of courts under Section 3 of the Human Rights Act to “read down” legislation to make it compatible with the Convention. As Lord Rodger of Earlsferry said in Mendoza [2004]:

using a Convention right to read in words which are inconsistent with the scheme of the legislation or with its essential principles as disclosed by its provisions does not involve any form of interpretation by implication or otherwise. It falls on the wrong side of the boundary between interpretation and amendment of the statute.

Even if the Tribunal were able to “read down” the SIA to make it compatible with Article 6, Strasbourg jurisprudence did not compel it to.  The purpose of State Immunity is to give protection to the performance of the public functions of the State in the manner which international law requires in respect of independent and equal States. The inter-relationship of State Immunity and Article 6 of ECHR has been explored by Strasbourg in Fogarty v United Kingdom [2004]. The immunity was considered by the Court to be a proportionate and therefore justifiable limitation on the Article 6 rights of the applicants concerned:

Questions relating to the recruitment of staff to missions and embassies may by their very nature involve sensitive and confidential issues, related, inter alia to the diplomatic and organisational policy of a foreign State. The Court is not aware of any trend in international law towards a relaxation of the rule of State immunity as regards issues of recruitment to foreign missions.

2) The EU Charter

So no assistance then, from Strasbourg or the HRA.  But the appellants brought out their trump card, Article 47 of the EU Charter . This provided a means of enforcing EU rights over and above that provided for by the HRA. If the state immunity rule could not be disapplied because of the Human Rights Act and the Convention, the EAT accepted the appellants’ submission that the 1978 Act was incompatible with these fundamental rights, and should be disapplied, pursuant to section 2 of the European Communities Act 1972. This was because Article 47 of the Charter creates rights which are directly effective in the UK;  as such it is supreme; and where it is incompatible with domestic legislation, the latter must yield.

Until recently, the Charter did not confer any directly enforceable rights on anyone (European Parliament v Council for the European Union). But since the Lisbon Treaty was signed, things have changed. In the 2012 case of Rugby Football Union v Consolidated Information Services  the Supreme Court confirmed at paras. 26-28 that the Charter now has direct effect in national law, “binding member states when they are implementing EU law”.

There is, however, a limitation on the ability of the courts to give effect to directly effective rights in a case such as this because it is also well established that the direct effect of a Directive cannot be pleaded against private bodies: see  Marshall v Southampton & South West Hampshire Area Health Authority (Teaching) [1986] ECR 723.  As Langstaff J explains, however, that does not affect the principle of harmonious construction which gives indirect effect to the right.:

This requires that the domestic courts must, if at all possible, construe the relevant domestic laws so as to give effect to the EU right. This is the well known Marleasing principle ( [1990] ECR I-4135). This principle applies not only to the law passed to give effect to the EU right, but to the body of domestic law as a whole: see Pfeiffer v Deutches Rotes Kreuz, Kreisferband Waldshut [2004] ECR I-8835. It is only if the domestic legislation cannot sensibly be construed compatibly with European law that the claimant will be denied his rights.

Furthermore, in Kucukdeveci v Swedex GmbH and CO KG [2011] 2 CMLR 27  the Court of Justice of the EU allowed a Directive to be enforced against a private individual, saying that

The need to ensure the full effectiveness of the principle of non-discrimination on the grounds of age, as given expression in Directive 2000/78, means that the national court, faced with a national provision falling within the scope of EU law which it considers to be incompatible with that principle, and which cannot be interpreted in conformity with that principle, must decline to apply that provision, without being either compelled to make or prevented from making a reference to the court for a preliminary ruling before doing so.

The combined effect of the RFU and Kucukdeveci cases was that the Charter had direct effect in national law, and that the State Immunity Act should be disapplied to the extent that in respect of rights within the material scope of EU law it breached the due process provisions in Article 47 of the Charter, the effect of which is coterminous with Article 6 ECHR.

But what about the supposed “opt out Protocol“, which applies to Poland and the United Kingdom (see my post about this)? As will be recalled, this protocol provides that nothing in the Charter extends the ability of the CJEU or any other court to find that the laws, regulations or administrative provisions of Poland or the UK are inconsistent with the fundamental rights in the Charter.  But the effect of the Saeedi case, which came before the CJEU under the name of  N.S. [2012],  was to weaken the impact of the protocol to the extent that, where the Charter makes no difference to the approach which courts should take where a breach of Article 6, or any other provision of the ECHR is identified, then the Protocol does not bite (since in theory the UK court is not being asked to extend the rights already recognised within its jurisdiction). See my post on the AG’s opinion in N.S. here.

Despite acknowledging the difficulties thrown up by allowing principles of EU law to have horizontal effect between individuals, such as undermining the rule of certainty in the law, as well as the  “uncomfortable recognition” that the domestic legislature took care in the HRA not to allow the courts to disapply any domestic statute which was in conflict with the ECHR,  Langstaff J had “no doubt” that the provisions in the 1978 Act were in conflict not just with a right recognised in the ECHR, but that which has been recognised as a general principle of EU law,

regarded as fundamental because it concerns access to a court for the purpose of remedying unlawful discrimination, to which the court must apply EU law, to do its duty under the European Communities Act of 1972.

So, the fact of the matter is this: the HRA may not permit the disapplication of any statutory provision by any tribunal in the land, but EU law requires it where it concerns the material scope of EU law.

In view of the far-reaching consequences of this decision, the EAT has granted the Sudan and Libyan embassies permission to appeal.  The two employees have also been granted permission to seek a declaration of invalidity in respect of their unfair dismissal and minimum wage claims, something which is outside the jurisdiction of the EAT.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts:

6 comments


  1. Well this diplomatic immunity is a very interesting topic these days, especially because of the struggles between Russia and the Netherlands. This is also an interesting matter!

  2. Hedd says:

    Although embassies are not the sovereign territory of their occupants, they are under the occupant state’s jurisdiction, are the not? Therefore, once again: how can EU law apply? Yet, it may be part of EU territory but not bound by its laws.

  3. Andrew says:

    It is one of the abiding myths of the law that the Ruritanian Embassy in London is Ruritanian territory. It is not. It is part of the UK and of England even though the laws of England may be unenforceable there. The authority for that is in a matrimonial case called, if memory serves, Radwan.

  4. Calchas says:

    Embassies are not really “sovereign territory”. They are afforded some special privileges by treaty, convention and enactment but what the law giveth the law can taketh away again.

  5. cidermaker says:

    Interesting cases. I’m a bit confused since the issues occurred, apparently, on embassy premises which are technically sovereign territory of the countries concerned, therefore not in the EU. How can EU Law apply in such cases?

  6. Andrew says:

    In the immortal words of President Andrew Jackson:

    Jonh Marshall has made his decision. Now let him enforce it.

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation DEFRA Democracy village deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts http://ukhumanrightsblog.com/2011/04/11/us-state-department-reports-on-uk-human-rights/ Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: