European Court of Human Rights rules on Embassies’ claims to immunity in relation to employment claims

16 May, 2022

Benkharbouche and Janah v United Kingdom (Applications 19059/18, 19725/18)
Buttet v United Kingdom (Application 12917/19)

The European Court of Human Rights has handed down two judgments relating to the compatibility of the State Immunity Act 1978 with Article 6, and/or Article 14, of the European Convention on Human Rights. The applicants across all the cases were employed by embassies of foreign States in London and had brought claims before English Employment Tribunals, which had been dismissed in whole or in part on the basis that the embassies were entitled to immunity under the Act.

Benkharbouche and Janah

Both applicants had brought claims before the Employment Tribunal asserting, inter alia, that they had been unfairly dismissed and had not been paid the minimum wage during their employment with the embassy of Sudan (in the case of Ms Benkharbouche) and Libya (in the case of Ms Janah). Their claims under domestic law were dismissed on the basis that the employer States were entitled to immunity under sections 16(1)(a) and (in the case of Ms Janah) 4(2)(b) of the Act. The UK Supreme Court in Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs; Secretary of State for Foreign and Commonwealth Affairs v Janah [2017] UKSC 62 had upheld declarations by the Court of Appeal that sections 16(1)(a) and 4(2)(b) of the Act operated in a way that was incompatible with Article 6 and (in the case of section 4(2)(b)) Article 14 of the Convention, insofar as they prevented the applicants from bringing their employment claims before an Employment Tribunal.

Before the ECtHR, the applicants maintained their claims under Article 6 and Article 14 and sought an award of just satisfaction. In light of the Supreme Court’s judgment, the UK Government accepted that there had been a violation of Articles 6 and 14. It made a unilateral declaration pursuant to Rule 62A of the Rules of the ECtHR acknowledging the breaches, undertaking to provide redress to each applicant in the form of specified sums of compensatory damages, and committing to implement a Remedial Order to amend the Act to rectify the incompatibility identified by the Supreme Court. On the basis of the unilateral declaration, the Government invited the ECtHR to strike out the claims as inadmissible pursuant to Article 37(1) of the Convention.

In its judgment, the Court rejected the Government’s request on the basis that the sums which the Government had undertaken to pay in its unilateral declaration “fall significantly short of the amounts that [the Court] would award in respect of just satisfaction” (para. 59). Despite acknowledging that it was “not in a position to calculate the value of the lost opportunity” as a result of the Act barring the applicants’ Employment Tribunal claims, the Court nonetheless held that it “cannot be blind to the potential value of the opportunity that was lost” (para. 56). Further, the Government’s commitment to introducing a Remedial Order did not assist it, as it could provide “no guarantee that the applicants would have any possibility of having their cases reheard by the Employment Tribunal” (para. 58). The Court proceeded to order that the Government pay €50,000 to each of the applicants in respect of pecuniary damages, and further sums of €5,000 and €6,500, respectively, in respect of non-pecuniary damage.

These sums were significantly higher than awards of just satisfaction made in previous cases on similar facts and the ECtHR’s approach appears to signal a departure from previous cases where it has assessed the loss of opportunity arising from an Article 6 violation largely without reference to the sum which had been sought in the civil claim before a domestic court.


The applicant in Buttet was a national of France who had been employed as a security guard by the French embassy in London, before what he alleged was his unfair dismissal. His claims had also been dismissed by an Employment Tribunal pursuant to the Act, but he had not challenged that decision nor sought a declaration of incompatibility concerning the application of the Act in his case.

The ECtHR declared Mr Buttet’s claim to be inadmissible on the basis that he had not established that he was a “victim” of any alleged Convention violation (paras. 56, 65). It stated at paras. 61–62 that Mr Buttet had not established before the Employment Tribunal, as a matter of fact, either that he was a permanent resident of the United Kingdom or that his functions as a security guard were not sovereign in nature, and he had not appealed the ET’s findings on these questions. Thus, even if it could be said that the Act was not consistent with customary international law and therefore in principle could give rise to an incompatibility with the Convention, he had not established that he was the victim of any such incompatibility. As he had presented no arguable claim of a violation of his Convention rights, his application was dismissed under Article 35(4) of the Convention.

In these proceedings, Jessica Wells and Naomi Hart acted on behalf of the Government of the United Kingdom, instructed by the Foreign, Commonwealth and Development Office.