State Immunity Act 1978 violated the EU and ECHR right to a fair trial


Re: Benkharbouche & Anor v Embassy of the Republic of Sudan [2015] EWCA Civ 33

The claimants were foreign nationals employed in the UK as domestic staff by foreign diplomatic missions. Their claims for, among other things, unfair dismissal, unauthorised deductions from wages, breaches of the Working Time Regulations 1998, SI 1998/1833 and discrimination and harassment, were barred from proceeding by the State Immunity Act 1978 (SIA), even though the employment tribunals both accepted that depriving the claimants of a remedy potentially breached the right to a fair trial under ECHR, art 6. Held: The 1978 Act was to be disapplied where EU law was at issue, because EU Charter of Fundamental Rights, art 47 demanded that an effective EU law remedy be available. A declaration of incompatibility under the Human Rights Act 1998 was where the domestic law elements of the claim were concerned.

Aiden O’Neill QC (Scot) was involved in this case