End sexual harassment at embassies in London

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Discrimination at Embassies
At the moment, and for the first time in UK history, due to last year’s Supreme Court decision in Benkharbouche and Janah, it is illegal to sexually harass or discriminate against staff working at embassies.
This is because the foreign government concerned can no longer hide behind sovereign immunity (or diplomatic immunity – see the Supreme Court decision in Reyes) to prevent such claims under the Equality Act 2010. The immunity has been over-ruled by the EU’s Fundamental Charter of Rights (“the EU Charter”).

However, on exit day, which is 29 March 2019, the EU Charter will cease to apply in the UK. At that point, it is likely that embassy staff will no longer be protected against discrimination and harassment at London embassies. Hence, any worker with a EU law based claim (discrimination, harassment, Working Time Directive holiday pay etc) must issue that Employment Tribunal claim before 29 March 2019. Otherwise those rights will be lost. Please let people know.

This petition requests the Government amends the State Immunity Act 1978 before 29 March 2019 to prevent foreign governments using State immunity to block harassment and discrimination claims after that date. It is the only way to prevent these anti-harassment rights being lost forever.  

By way of background, previously embassies could always hide behind State or diplomatic immunity. A female employer could be sexually assaulted at work and nothing could be done. A non-embassy national could be treated horrifically based on their race or religion or nationality etc and nothing could be done.

I was the first lawyer to challenge the discriminatory culture at some London based embassies. In the case of Mary Fogarty, she was dismissed after complaining about sexual harassment at the US Embassy in London. She won her Employment Tribunal claim because the embassy failed to assert state immunity properly, which is a very rare error. Subsequently, she gained evidence that the US Ambassador had refused to re-employ her because she had sued them and got her “damages”. They asserted State immunity and the victimisation case was defeated.
I realised that in denying her victimisation claim the State Immunity Act 1978 breached her Article 6 right to a fair trial under the European Convention for Human Rights. Article 6 does not supersede UK legislation but you can obtain a declaration of incompatibility. The UK Government can then choose to amend UK law to make it compatible with the Convention, but they normally fail to do so.
We lost 14/1 at Strasbourg with the UK judge voting against us and only the Greek judge recognising that article 6 was breached and that State immunity was not designed to apply to discrimination claims.

Fast-forward over a decade and the they re-ran the same argument in Benkharbouche and Janah. By that time, there was some international judicial support for sovereign immunity being curtailed and that article 6 was breached by it. They won. They also said that an article 6 breach would amount to an article 47 breach. Article 47 provides for a fair trial or EU rights under the EU Fundamental Charter of Rights. The difference is that article 47 has horizontal direct (legal) effect in the UK and EU law trumps UK Law (until 29 March 2019). The Supreme Court accepted that argument and State immunity was struck down by Article 47.
What should have happened then is the Government should have amended the State Immunity Act 1978 to disapply it when it comes to EU rights. However, the FCO are lobbying for no change before Brexit. They do not wish to offend the embassies. Discrimination is not illegal is many countries of the world. The FCO under Johnson (and May) should be campaigning for the law to be changed and embassy staff to receive protection against discrimination. It is the 21st Century after all. It is ironic that they sometimes call for human rights abroad but not now in the UK.

Similarly, the denial of the UK law rights such as Unfair Dismissal was found to breach Article 6. The Government has not issued a remedial order. It is ignoring the breach of the European Convention, no doubt to appease certain foreign governments.

Our current Embassy discrimination and harassment claim is against Qatar. It is a horrible case (if proven) and one of 48 in a queue at London Central ET while we await the Government’s official response to last year’s Supreme Court decision.

Will the Government legislate that State and diplomatic immunity can no longer prevent discrimination, harassment and other EU law based claims, and UK Law claims, or will they sweep those human rights under the red carpet of the visiting foreign government?



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