Last Updated on April 5, 2022 by LawEuro
Information Note on the Court’s case-law 261
April 2022
Benkharbouche and Janah v. the United Kingdom – 19059/18
Judgment 5.4.2022 [Section IV]
Article 37
Article 37-1
Striking out applications
Government concession as to Convention breaches but inadequate offer of redress : not struck out of the list
Article 6
Civil proceedings
Article 6-1
Access to court
State immunity legislation preventing applicants from bringing employment claims after dismissal from foreign embassies within the United Kingdom: violations
Facts – The applicants, two Moroccan nationals, worked as domestic workers within foreign embassies in the United Kingdom. They unsuccessfully brought employment claims after their contracts of employment were terminated: in each case the employer – the Republic of Sudan and the State of Libya, respectively – successfully asserted immunity from the jurisdiction of the English courts by virtue of domestic law (the State Immunity Act 1978, “the 1978 Act”). In a Declaration of Incompatibility, the Court of Appeal declared that the relevant parts of the 1978 Act as applied to the first applicant infringed Article 6 of the Convention, and infringed Articles 6 and 14 in their application to the second applicant.
The Government submitted a Unilateral Declaration acknowledging the breaches, insofar as those provisions had prevented each of the applicants from bringing an employment claim against a foreign State in circumstances where the United Kingdom was not required under customary international law to provide immunity to the foreign State in question. It undertook to pay each applicant GBP 20,000 in respect of pecuniary and non-pecuniary damages and GBP 2,500 in respect of costs and expenses. It further requested the Court to strike the application out of the list of cases in accordance with Article 37. The applicants disagreed with the terms of the Unilateral Declaration.
Law – Article 37: The decision whether to strike the applications out of the Court’s list depended on whether the Government’s Unilateral Declaration afforded the applicants adequate redress.
The Court was not in a position to calculate the value of the lost opportunity by carrying out a detailed analysis of the strength of the applicants’ cases and/or any likely awards. Any redress could therefore only be based on the fact that the applicants, who had been deprived of the opportunity to pursue their claims before the domestic courts, had not had the benefit of the guarantees of Article 6. Nonetheless, the Court had consistently treated the loss of an opportunity as pecuniary damage. It was therefore axiomatic that, provided a causative link could be established between the breach and the loss of opportunity, in assessing the appropriate level of compensation the Court could not be blind to the potential value of the opportunity that had been lost.
In the present case, the applicants had initiated their claims before the Employment Tribunal, only for the Tribunal to find that they had been barred by virtue of domestic legislation. There had therefore been a direct causal link between the acknowledged breaches of Articles 6 and 14 and the applicants’ loss of opportunity to pursue their claims. Furthermore, both applicants’ claims under domestic law had exceeded GBP 200 000, and a significant proportion of the amount claimed had concerned their employers’ alleged failure to pay the National Minimum Wage. Despite the fact that the veracity of those claims could readily be established from the applicants’ contracts of employment, the Government had not suggested either that the applicants’ claims had lacked merit, or that the sums claimed had been unreasonable.
The Government had undertaken to introduce a remedial order to address the acknowledged incompatibility of the domestic law with Articles 6 and 14. However, they had provided no guarantee that the applicants would have any possibility of having their cases reheard by the Employment Tribunal. Despite the fact that some seven years had passed since the Court of Appeal had first made a Declaration of Incompatibility, and more than four years had passed since the Supreme Court had dismissed the Government’s appeal, no draft of the remedial order had been published. It was therefore not clear whether it would have retrospective effect. Even if it did, the possibility for the applicants to have their claims reconsidered would fall squarely within the discretion of the Employment Tribunal.
In the light of the foregoing, the awards proposed by the Government in respect of pecuniary and non-pecuniary damage fell significantly short of the amounts that the Court would award in respect of just satisfaction.
The Court also came to the same conclusion as far as the amounts offered by the Government in respect of the applicants’ legal costs were concerned. During the eighteen months that had followed the communication of the applicants’ complaint, the parties had been engaged in friendly settlement negotiations. They had also had to respond to the Government’s Unilateral Declaration, and make their claims for just satisfaction. It was reasonable to assume that that had entailed significant legal costs.
The Court therefore rejected the Government’s request to strike the applications out of the Court’s list of cases.
Conclusion : Not struck out of the list
Article 6 § 1, read alone and taken together with Article 14: The applicants complained that the operation of domestic law had denied them access to court in breach of Article 6 § 1. The second applicant further complained under Article 14 read together with Article 6 § 1 that the relevant provision of domestic law had treated her differently to United Kingdom nationals who were seeking to pursue a similar claim.
Having regard to the particular circumstances of the present case, the Court accepted the Government’s concession that there had been a breach of the first applicants’ rights under Article 6 § 1 and the second applicant’s rights under Article 6 § 1, read alone and together with Article 14. Consequently, it was empowered to make an award of just satisfaction to the applicants. In so doing, it did not consider it necessary to itself examine the substantive issues raised by the applicants’ complaints, or to resolve any potential differences between the Supreme Court’s views as to what had been required by customary international law and the view expressed by the Court in its case-law (see among others Cudak v Lithuania [GC], Sabeh El Leil [GC] and Ndayegamiye-Mporamazina v. Switzerland) .
Article 41: EUR 50,000 to each applicant in respect of pecuniary damage; sums ranging between EUR 5,000 and 6,500 to each applicant in respect of non-pecuniary damage.
(See also Cudak v. Lithuania [GC], 15869/02, 23 March 2010, Legal Summary; Sabeh El Leil v. France [GC], 34869/05, 29 June 2011, Legal Summary; Ndayegamiye-Mporamazina v. Switzerland, 16874/12, 5 February 2019, Legal Summary)
Leave a Reply