* United Kingdom, UK Supreme Court, 18 October 2017 [2017] UKSC 62

Identification of the case

• Non-discrimination (art. 21 CFREU)
• Right to an effective remedy and to a fair trial (art. 47 CFREU)

• State Immunities Act 1978 (SIA); Sections 3 and 4 Human Rights Act 1998

• Article 21 and 47 CFREU

Summary of the case

The appellants, Ms. B. and Ms. J., were employees of the Sudanese and Libyan embassies in the UK, respectively. Both were dismissed and brought claims against the embassy for unfair dismissal and breach of the Working Time Regulation 1998. Additionally, Ms. B. brought claims of failure to pay the minimum wage, and Ms. J., arrears of pay, racial discrimination, and harassment.

These claims were turned down due to Section 16 (1) (a) State Immunity Act 1978 (SIA) as the appellants were considered “members of the mission”. While the tribunal recognised that this provision could breach Article 6 ECHR, it held that it could not disapply the SIA and allow the employment claims to go forward. This was upheld by the Employment Appeal Tribunal, but the claims under the Working Time Regulations and the race discrimination claim were allowed to proceed as they fell within the ambit of EU law and the right to an effective remedy and fair trial under Article 47 CFREU were infringed. The case was appealed to the Court of Appeal, which affirmed the judgment of the EAT, disapplying the relevant provisions so far as they applied to the EU law claims. It also made a declaration of incompatibility affecting all the claims, whether founded on domestic or EU law.

Statement of incompatibility of sections 4(2)(b) and 16(1)(a) of the State Immunity Act 1978 with the Human Rights Act 1998.

Disapplication of sections 4(2)(b) and 16(1)(a) of the State Immunity Act 1978 to the claims derived from EU law for discrimination, harassment and breach of the Working Time Regulations.

The Court found Section 4 (2)(b) SIA discriminatory on the grounds of nationality and a disproportionate limitation contrary to Article 6 ECHR, as no such limitation to the exception of immunity is required by customary international law or within the range of states’ margin of appreciation.

Discussing the issue of discrimination in Ms J.’s case, the Court found that claiming the discriminatory character of section 4(2)(b) of the Act to be a violation of article 14 ECHR, read in conjunction with article 6, ‘add[ed] nothing to her case based on article 6 alone.’ As section 4(2)(b) unquestionably discriminated on grounds of nationality, the only question was whether the discrimination was justifiable by reference to international law. Since the Court had found that state immunity was no answer to the claim under article 6 alone, it was no answer to the claim under the combination of article 6 and article 14. In the Court’s view, the denial of access to the courts to persons in her position is unjustifiable whether it was discriminatory or not.

Accordingly, the Court also found a violation of Article 47 CFREU. While it stated that the scope of Article 47 is not identical to that of Article 6 ECHR, on the facts of the case, a violation of the latter provision meant that the former was also violated. The Court did not discuss Article 47 as a separate issue, but did note the difference of the effects of Article 47 CFREU vs. Article 6 ECHR, stating that ‘a conflict between EU law and English domestic law must be resolved in favour of the former, and the latter must be disapplied; whereas the remedy in the case of inconsistency with article 6 of the Human Rights Convention is a declaration of incompatibility.’

The Court affirmed the finding of the Court of Appeal that sections 4(2)(b) and 16(1)(a) of the State Immunity Act 1978 would not apply to the claims derived from EU law for discrimination, harassment and breach of the Working Time Regulations. Ms B.’s other claims were barred by those sections of the Act. But to that extent they were held to be incompatible with article 6 ECHR, and also, in the case of section 4(2)(b) with article 6 read with article 14 of the Convention. The Court of Appeal’s statement of incompatibility under Section 4 of the Human Rights Act 1998 was upheld, as no compatible interpretation pursuant to Section 3 Human Rights Act was possible. Both cases were remitted to the Employment Tribunal to determine the claims based on EU law on their merits.

Role of the Charter and role of the general principles on enforcement

Both Articles 21 and 47 CFREU were relevant to this case, given the claim of discrimination in accessing an effective remedy. While the lower courts, including the Court of Appeal, referred explicitly to both provisions of the Charter, the Supreme Court only mentioned Article 47 CFREU.

• Explicit reference to Art. 47, CFREU (right to an effective remedy and a fair trial)
• Explicit reference to Art. 6 ECHR

Section 3 Human Rights Act 1998

‘Interpretation of legislation.

(1)So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

(2)This section—

(a)applies to primary legislation and subordinate legislation whenever enacted;

(b)does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and

(c)does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.’

Section 4 Human Rights Act 1998:

‘Declaration of incompatibility.

(1)Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.

(2)If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.

(3)Subsection (4) applies in any proceedings in which a court determines whether a provision of subordinate legislation, made in the exercise of a power conferred by primary legislation, is compatible with a Convention right.

(4)If the court is satisfied—

(a)that the provision is incompatible with a Convention right, and

(b)that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility, it may make a declaration of that incompatibility.

…

(6)A declaration under this section (“a declaration of incompatibility”)—

(a)does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and

(b)is not binding on the parties to the proceedings in which it is made.’

The national court stated that while the CJEU did not make clear which rights and principles within the CFREU were capable of having horizontal direct effect, in its judgment, Article 47 must fall into the category of provisions which do. The claimants could therefore rely on Article 47 in these proceedings.

Thus, the claims of both claimants in respect of breach of the Working Time Regulations 1998 and the claims by Ms. J. in respect of racial discrimination and harassment fall within the scope of EU law and Sections 4(2)(b) and 16(1)(a) SIA, in their application to these claims, infringed Article 47.

Elements of judicial dialogue

• Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)
• Dialogue between high court - lower instance court at national level

• Cjeu C-154/11, Mahamdia

• Cudak v Lithuania (Application No. 15869/02)
• Fogarty v United Kingdom Application no. 37112/97
• Jones v United Kingdom (Applications nos. 34356/06 and 40528/06)
• Al-Adsani v United Kingdom (Application no. 35763/97)
• Sabeh El Leil v France (Application no. 34869/05)
• Al Jedda v United Kingdom (Application no. 27021/08)
• Nada v Switzerland (Application no. 10593/08)
• Perincek v Switzerland (Application no. 27510/08)
• Wallishauser v Austria (Application no. 156/04)
• Radunović v Montenegro (Applications 45197/13, 53000/13 and 73404/13)

Conform interpretation with EU law as interpreted by the CJEU.

Conform interpretation with EU law as interpreted by the CJEU;

Conform interpretation of UK law with the European Convention of Human Rights.

A possible effect could have been legislative reform, given the declaration of incompatibility, but the UK Parliament is not bound to amend the law to bring it in line with the ECHR, and this did not occur after the case.

Additional notes on the decision