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

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