EU employment rights law trumps diplomatic immunity – what next?

15 October 2013 by Rosalind English

Benkharbouche 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

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.

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