Draft State Immunity Act 1978 (Remedial) Order 2022

The Benkharbouche case is similar. Again, it involves a Moroccan national, who was employed as a domestic worker at the Sudanese embassy in London. Like Janah, she made a claim before the employment tribunal for various breaches of employment law, including unfair dismissal and failure to pay her wages. When both claims were considered by the lower courts, the majority of the claims were dismissed on the basis that the 1978 Act granted their employers automatic immunity as a result of being diplomatic missions. The lower courts also dismissed Ms Janah’s claims on the basis that she was neither a UK national nor habitually resident in the UK at the time that she made her claim before the employment tribunal.

When both cases came to be considered by the Supreme Court, it unanimously found that the 1978 Act was unlawful as it prevented all employees of foreign embassies bringing claims for compensation against employer states, regardless of the nature of the employees’ work. In applying diplomatic immunity so widely, the Court found that the Act went far beyond the requirements of international law, which generally requires immunity only in cases where the employee exercises sovereign authority or some special characteristic is present.

In the case of Ms Janah, the Supreme Court also found that preventing claimants from bringing claims on the grounds that they were neither British nationals nor permanently resident in the UK was discriminatory.

To rectify those issues, the remedial order will amend the 1978 Act in two ways. First, it will limit the automatic immunity afforded to diplomatic missions to employment claims brought by employees such as Ms Janah and Ms Benkharbouche and, in doing so, ensure that a new class of employee can bring claims against an embassy. The Minister helpfully pointed out that there are 55 cases in train, waiting for the remedial order to be passed.

Secondly, the remedial order makes it easier for employment claims to be brought by employees who were neither a permanent resident nor a UK national at the time that they brought their claim, as in the case of Ms Janah.

The Opposition warmly welcome both these changes, and we will not seek to divide the Committee. As Emily Gibbs of the Anti Trafficking and Labour Exploitation Unit said following the Supreme Court judgment:

“These appeals are hugely significant. Overseas domestic workers working in embassies are exceptionally vulnerable to exploitation and abuse including trafficking. We are delighted that the Supreme Court has recognised that the UK’s State Immunity Act is too generous to foreign states, preventing employees, including many vulnerable workers, accessing justice and going well beyond the requirements of international law.”

That goes to the heart of the matter. Although we all recognise the need for some diplomatic immunity, it should not—and need not—be at the expense of hard-working and often hugely vulnerable domestic workers.

The Opposition hope that the order will go some way to redress that delicate legal balance and ensure that domestic embassy workers are afforded the same legal protections and have access to the same employment rights as any other workers across the UK.