The claimant had been an employee of a foreign diplomatic mission. He said that he was not debarred by the 1978 Act from bringing claims for unfair dismissal and breach of working time regulations, saying that any exemption would infringe his human rights.
Held: (i) where there is a breach of a right afforded under EU law, article 47 of the Charter is engaged; (ii) the right to an effective remedy for breach of EU law rights provided for by article 47 embodies a general principle of EU law; (iii) (subject to exceptions which have no application in the present case) that general principle has horizontal effect; (iv) in so far as a provision of national law conflicts with the requirement for an effective remedy in article 47, the domestic courts can and must disapply the conflicting provision; and (v) the only exception to (iv) is that the court may be required to apply a conflicting domestic provision where the court would otherwise have to redesign the fabric of the legislative scheme.’
It was ‘questionable’ whether article 11 of the draft articles was in fact a definitive statement of customary international law in embassy employment disputes.
Judges:
Lord Dyson MR, Arden, Lloyd Jones LJJ
Citations:
[2015] EWCA Civ 33, [2016] QB 347, [2015] 3 WLR 301, [2015] IRLR 301, [2016] 1 All ER 816, [2015] 2 CMLR 20, [2015] WLR(D) 83, [2015] HRLR 3, [2015] ICR 793
Links:
Statutes:
State Immunity Act 1978, European Convention on Human Rights 6, Charter of Fundamental Rights of the European Union 47
Jurisdiction:
England and Wales
Citing:
At EAT – Benkharbouche v Embassy of The Republic of Sudan (Jurisdictional Points : State Immunity) EAT 4-Oct-2013
EAT STATE IMMUNITY
A cook at the Sudanese embassy, and a member of the domestic staff of the Libyan embassy, both made claims arising out of their employment. They were met with pleas of State Immunity, . .
Cited by:
Cited – The United States of America v Nolan SC 21-Oct-2015
Mrs Nolan had been employed at a US airbase. When it closed, and she was made redundant, she complained that the appellant had not consulted properly on the redundancies. The US denied that it had responsibility to consult, and now appealed.
At CA – Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs SC 18-Oct-2017
The court was asked as to the compatibility of provisions in the 1978 Act with the human rights of the appellant. The claimants, Moroccan nationals were employed as domestic staff in embassies in London. They alleged both race discrimination and . .
Lists of cited by and citing cases may be incomplete.
Employment, European, Human Rights, International
Updated: 07 September 2022; Ref: scu.542260
