Yes, says the EAT in Benkharbouche v Sudan. Provisions of primary law which conflict with a general principle of EU law must be disapplied where the substantive rights in issue fall within the material scope of EU law.
In joined appeals, two Claimant domestic workers brought claims against the embassies of Libya and Sudan in London under the Working Time Directive, for discrimination and unfair dismissal inter alia. When their claims were dismissed under Sections 16 and 4 of the SIA, they argued this breached their right of access to a court or tribunal under Article 6 ECHR and (equivalent protection under) Article 47 of the EU Charter.
The President of the EAT agreed that the provisions were contrary to Art 6, but found that it is not possible to read Art 6 compatibly with the SIA under Section 3 of the Human Rights Act 1998. However, recent EU case law C-555/07 Kücükdeveci v Swedex GmbH & Co KG and C-617/10 Aklagaren v Franssonconfirmed that where a general and fundamental principle of EU is concerned, such as the right to a fair hearing, UK courts must disapply a provision of domestic law which stands in its way, regardless of whether the dispute takes place between private persons. Langstaff P ruled that the obligation is limited to the material scope of EU law, i.e. rights under statutory provisions which implement Directives or Regulations.
Therefore, claims relating to discrimination and working time were caught, but claims relating to unfair dismissal and minimum wage would have to be pursued via a declaration of incompatibility under the Human Rights Act 1998 only.
Due to the far-reaching impact of the ruling, permission to appeal was granted to all parties.