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73 Cambridge L.J. 1 (2014)

handle is hein.journals/camblj73 and id is 1 raw text is: Cambridge Law Journal, 73(1), March 2014, pp. 1-37 THE CAMBRIDGE LAW JOURNAL VOLUME 73, PART 1 MARCH 2014 CASE AND COMMENT THE STATE IMMUNITY ACT AND THE RIGHT OF ACCESS TO A COURT IN the joined appeals of Benkharbouche v Embassy of the Republic of Sudan and Janah v Embassy of the Republic of Libya UKEAT/0401/12/ GE, UKEAT/0020/13/GE (4 October 2013), the President of the Employment Appeals Tribunal (EAT) held that the application of sections 4(2)(b) and 16(1)(a) of the State Immunity Act 1978 (SIA) in two Employment Tribunal cases brought by embassy employees vio- lated the right of access to a court guaranteed by the European Convention on Human Rights (ECHR) and the EU Charter of Fundamental Rights. To the extent that the claims involved EU law and availability of immunity violated the EU Charter, Langstaff J. held that both sections of the SIA should not be applied. Section 1 of the SIA provides that states are immune from the jur- isdiction of UK courts, but section 4(1) removes that immunity for proceedings relating to a contract of employment that is made or is due to be performed in the UK. Subparagraph 4(2) contains excep- tions to the exclusion of immunity in 4(1), including where, if at the time the contract was entered into, the employee was neither a national of the UK nor habitually resident in the UK. Section 16(l)(a) SIA also provides that the exception to immunity in section 4(1) does not apply to proceedings concerning the employment of the members of a diplomatic mission, which is defined by the Vienna Convention on Diplomatic Relations as including the domestic staff of a mission. The first Employment Tribunal dismissed claims brought by Ms Benkharbouche, who was a cook at the Sudanese embassy in London, on the basis that she was a member of the domestic staff of a mission for the purposes of section 16(l)(a) SIA; the second Tribunal dismissed the claims brought by Ms Janah, who was a mem- ber of the domestic staff at the Libyan embassy in London, on the 1

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