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United Kingdom / Court of Appeal, civil division / A2/2013/3062

Benkharbouche/Janah v Sudan Embassy/Libya

Policy area:
Employment and social policy
Deciding Body type:
National Court/Tribunal
Decision date:

Key facts of the case:

The appellants, B and J, had been employees of respectively the embassy of Sudan and the Embassy of Libyia in the UK. They had several employment claims which were turned down by the employment tribunal on the basis of Section 16 (1) (a) of the State Immunity Act 1978 (SIA) because they were considered “members of the mission”. The tribunal recognised that Section 16 (1) (a) could breach Article 6 of the ECHR but held that it could not read the two down compatibly or disapply provisions of the SIA to allow the employment claims to proceed. The Emploment Appeal Tribunal upheld the decisions but held that claims under the Working Time Regulations 1998 and J’s race discrimination claim could proceed as they were within EU law and the employees’ rights to an effective remedy and a fair trial under Article 47 of the Charter were infringed.

Outcome of the case:

With regard to 1) the court held that the provisions of the SIA could not be read down compatibly with ECHR rights and a declaration of incompatibility would be made. With regard to 2) the court held that a Charter right could be relied on horizontally in certain circumstances. Article 47 of the Charter reflected general principles of EU law, it did not depend on its definition in national law to take effect and therefore fell into the category of Charter rights that could have horizontal effect.