This appeal concerned the alleged exploitation of overseas staff recruited abroad. Unlike the case of Reyes v Al-Malki & Anor [2017] UKSC 61 the claimants were employed by the embassies themselves as opposed to individual diplomats. The case highlights the gradual curtailment of the doctrine of state immunity through human rights law.

The claimants were Moroccan nationals. Ms Benkharbouche was recruited in Iraq to work in the Sudanese embassy in London as a housekeeper and cook to the ambassador. Ms Janah was recruited in Libya to work in the Libyan embassy as a domestic worker. They were dismissed from their roles and initiated claims for unfair dismissal, failure to pay the National Minimum Wage, unpaid wages including holiday pay, breach of the Working Time Regulations, failure to provide written terms and conditions and discrimination and harassment.

State immunity in the UK is governed by domestic law contained in the State Immunity Act 1978.

Section 4(2) (b) of the Act provides that a foreign state is immune as respects proceedings relating to a contract of employment between a state and a person who at the time of the contract is neither a national of the United Kingdom nor resident there; and section 16(1) (a) provides that a state is immune as respects proceedings concerning the employment of members of a diplomatic mission, including its administrative, technical and domestic staff.

The Court had to decide whether these provisions were compatible with the EU Charter of Fundamental Rights and Freedoms and the European Convention on Human Rights. The Claimants argued that the relevant provisions of the 1978 Act were incompatible with EU law and with Article 6 of the ECHR, because they prevented access to a court in circumstances where the result was not required by international law. The Secretary of State argued that a court’s recognition of state immunity can never amount to an infringement of article 6, because it only reflects the court’s lack of jurisdiction over a foreign state, but that in any event the relevant provisions of the Act were consistent with international law.

The Supreme Court dismissed the Secretary of State’s appeal and affirmed the order of the Court of Appeal. The Court ruled sections 4(2)(b) and 16(1)(a) of the 1978 Act are incompatible with the right to access a court under article 6 of the European Convention on Human Rights. With regards the claims brought under EU law - EU law prevails over English law in the event of a conflict, therefore those sections of the 1978 Act cannot bar the claims that are based on EU law. Those claims were therefore remitted to the Employment Tribunal to be determined on their merits at trial.
https://www.supremecourt.uk/cases/docs/uksc-2015-0063-judgment.pdf 

Watch a summary of the decision delivered by Lord Sumption:
https://www.youtube.com/watch?v=F6E_xygtb6I