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The Court of Appeal (CA) considered whether staff of foreign diplomatic missions based in the UK could bring employment proceedings in the UK.
In Benkharbouche v Embassy of the Republic of Sudan and another, Ms Benkharbouche and Ms Janah were Moroccan nationals, employed in the UK as domestic staff for the Sudanese and Libyan embassies. They brought various employment claims including unfair dismissal, discrimination, unpaid wages and holiday pay in the UK.
The Employment Tribunal (ET) held that they were unable to bring these claims as provisions of the State Immunity Act (SIA) barred them from doing so. The Employment Appeal Tribunal (EAT) overturned the decision and found that the employees could bring those claims which derived from EU law. The relevant provisions of the SIA breached the employees' right to a fair trial and the right to access a court under EU law. However, the claims for wages and unfair dismissal which related solely to rights under domestic law were not able to proceed.
The CA upheld the EAT's decision that the domestic legislation should be disapplied to give effect to the general principle of EU law and the claims which derived from rights under EU law should be allowed to proceed. The CA made a declaration of incompatibility under the Human Rights Act in relation to the relevant parts of the SIA.