‘Acting with Impunity’

‘Acting with Impunity – A Victory for Vulnerable Workers’

We have recently seen a rapid change within employment law, which has seen several significant barriers to justice removed.

If you remember this July, we saw the landmark decision to remove Tribunal Fees as unlawful, which has opened the door for thousands of workers and employees deprived from proceeding with their claims due to unjust fees. The latest decision by the Supreme Court has just seen further obstacles removed for workers, specifically for those working in Embassies and for vulnerable workers contained within diplomatic households.

The Supreme Court ruled in the first case of Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs (Oct 2017) that:

  • The State Immunity Act 1978 cannot protect Embassies from Employment Tribunal claims brought by domestic staff in the United Kingdom,

Whereas, the second case of Reyes v Al-Malki and Another (Oct 2017) held:

  • Diplomats are accountable when they exploit domestic workers and they cannot seek to rely on diplomatic immunity to protect themselves.

Background:

The case of Benkharbouche involved two employees from separate Embassies (Libya and Sudan). They brought claims for unfair dismissal, failure to pay the minimum wage and the Working Time Regulations. The respective Embassies relied upon State immunity against any claim under the State Immunity Act 1978 (SIA 1978).

The case of Reyes, differed as a serious domestic slavery case, where the ex-employee claimed she was forced to work 17-hours a day. The claimant further alleged to have suffered from racial discrimination and claimed that she was effectively locked inside her employer’s residence as a prisoner.  The employer’s defence relied upon his diplomatic immunity, as he worked as a Saudi envoy at the material times in question and thus claimed that the Tribunal did not have the jurisdiction to hear the case under SIA 1978.

The Supreme Court’s Decisions:

The Supreme Court’s decision in Benkharbouche found that the absolute immunity provided by the SIA 1978, breached Article 6 of the Human Rights Act, which is the right of access to justice and the right to a fair trial.

The Justices stated that the immunity afforded under the SIA 1978, provided far more protection than was required under International Law. They further found that in preventing claimants from bringing a claim, because of their nationality and/or residency was by its very nature discriminatory and contrary to European Charter of Human Rights.

The decision in Reyes ruled that ‘trafficking’ should be regarded as a ‘commercial activity’ outside of diplomatic immunity. In addition, the Justices stated that aside from the abhorrent human-trafficking element in the case, it was not conceivable that the employment of a private domestic worker was within the official functions of a diplomat. As such, a diplomat cannot rely upon immunity that outreaches the purpose of their diplomatic mission.

What Does the Decisions Mean for the future?

The Supreme Court has recognised that the law on diplomatic immunity is in desperate need to evolve and action is required to challenge the ‘shield of immunity for States and serving diplomats who engage in human rights violations’.

Whilst both judgments are a victory for vulnerable workers who have been left behind and exploited, the Government must recognise that future protection will be needed after the Country leaves the EU and the Charter of Fundamental Rights of the European Union with it.

This was highlighted in Benkharbouches as only the claims centred on EU law were permitted to proceed on the basis that ‘EU law prevails over English law in the event of a conflict’. As a result, the other claims outside of EU law were barred from proceeding, as they were without a remedy, with only a declaration of incompatibility being offered. This shows the enormity of the task ahead to ensure that a remedy is available to those affected by breaches of human rights!

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