Factual and Procedural Background
The Plaintiff worked at the Embassy of a foreign State in London during two periods, from 2008 to 2011 and from 2013 to 2015, resigning in September 2015. On 24 December 2015, the Plaintiff issued an employment tribunal claim alleging constructive unfair dismissal, failure to provide a written statement of employment terms, direct racial discrimination on grounds of nationality, and harassment on similar grounds. The claims primarily concerned alleged discriminatory conduct by a senior embassy official. The foreign State respondent asserted state immunity and later, by amendment, diplomatic immunity.
A preliminary hearing was conducted where the Employment Judge held that the foreign State was entitled to immunity under employment statutes but rejected claims to sovereign or diplomatic immunity under the Equality Act 2010. The foreign State's appeal against this rejection was dismissed by the Employment Appeal Tribunal ("EAT"). The foreign State was granted permission to appeal to the higher court, subject to a costs condition.
Legal Issues Presented
- Whether the acts complained of by the Plaintiff constitute inherently sovereign or governmental acts of the foreign State, thereby engaging state immunity.
- Whether the Plaintiff's status as administrative and technical staff under the Vienna Convention on Diplomatic Relations 1961, her nationality, and the nature of her employment affect the applicability of state immunity.
- Whether the foreign State is entitled to claim diplomatic immunity in respect of the Plaintiff's claims.
- Whether section 4(2)(a) of the State Immunity Act 1978 should be disapplied as incompatible with the European Convention on Human Rights in the context of the Plaintiff's claims.
Arguments of the Parties
Appellant's Arguments
- The conduct complained of by the Plaintiff, including disparaging remarks and restrictions on access to documents, are integral to the diplomatic mission’s sovereign functions and thus constitute sovereign acts.
- The Plaintiff’s roles as the Ambassador’s social secretary and Protocol Officer are inherently governmental and cannot be performed by private persons, distinguishing her from domestic staff and justifying state immunity.
- The Plaintiff’s Spanish nationality supports the application of state immunity, as customary international law favors immunity in contracts with nationals of the foreign State.
- The foreign State should be entitled to rely on diplomatic immunity, as immunity is personal to the diplomatic agent but also protects the sending State from being made answerable in court for actions of its envoy.
Appellee's Arguments
- The acts complained of do not amount to sovereign acts or fall within exceptional categories such as dismissal on grounds of state security or recruitment policy.
- The Plaintiff’s employment functions were more akin to private law activities rather than involvement in diplomatic or political operations, thus not attracting state immunity.
- The Plaintiff’s dual nationality is not determinative; the nature of the employment is more significant under customary international law and UK law.
- Diplomatic immunity is personal to the diplomatic agent and cannot be invoked by the sending State in respect of employment claims brought by administrative or technical staff.
- There is no binding customary international law rule supporting absolute diplomatic immunity for the State in such employment disputes.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Benkharbouche v Embassy of the Republic of Sudan; Janah v Libya [2017] UKSC 62 |
State immunity in employment claims involving diplomatic missions; distinction between sovereign acts and private law acts; incompatibility of certain sections of the State Immunity Act 1978 with ECHR. |
Guided the court’s analysis on the restrictive doctrine of sovereign immunity and disapplication of statutory provisions incompatible with human rights obligations. |
| Playa Larga (Owners of Cargo Lately Laden on Board) v I Congreso del Partido [1983] 1 AC 244 |
Distinction between acts jure imperii (sovereign acts) and jure gestionis (private acts) for state immunity purposes. |
Supported the legal framework for categorizing acts relevant to state immunity. |
| Cudak v Lithuania; Sabeh El Leil v France; Wallishauser v Austria; Radunovic v Montenegro |
Test for whether employment functions involve personal involvement in diplomatic or political operations affecting immunity. |
Used to assess the Plaintiff’s employment functions as not involving sovereign interests. |
| Mahamdia v People's Democratic Republic of Algeria (Case C-154/11) |
State immunity does not apply where employee functions do not fall within the exercise of public powers. |
Supported the court’s conclusion that the Plaintiff’s employment did not engage sovereign authority. |
| Saudi Arabia v Nelson (1993) 507 US 349 |
Foreign State Immunity Act interpretation limiting immunity to sovereign acts in employment contracts. |
Referenced to illustrate international consensus on restrictive state immunity in employment contexts. |
| Segni v Commercial Office of Spain (1987) 835 F 2d 160 |
Application of sovereign immunity to employment contracts based on participation in diplomatic functions. |
Supported the test applied to the Plaintiff’s employment functions. |
| Holden v Canadian Consulate (1996) 92 F 3d 918 |
Same principle as Segni regarding sovereign immunity in employment claims. |
Reinforced the legal standard for immunity claims. |
| El-Hadad v Embassy of the United Arab Emirates (2000) 216 F 3d 29 |
Nationality is irrelevant to the characterization of employment for immunity purposes. |
Supported the court’s view that Plaintiff’s dual nationality was not decisive. |
| Sengupta v Republic of India [1983] ICR 221 |
Earlier broad test for sovereign acts in employment context. |
Distinguished and criticized as too wide; not followed by the court. |
| Kramer Italo Limited v Government of Kingdom of Belgium; Embassy of Belgium 103 ILR 299 (1988) |
Diplomatic immunity protects the sending State from being sued for acts of diplomatic agents. |
Relied upon by the Appellant but regarded as an outlier by the court. |
| Jurisdictional Immunities of the State [2012] ICJ Rep 99 |
Principle that state immunity is an exception to territorial sovereignty and jurisdiction. |
Referenced to explain the territorial basis of immunity and its limits. |
Court's Reasoning and Analysis
The court began by examining the nature of the acts complained of and the functions performed by the Plaintiff. It accepted the Employment Tribunal’s finding that the Plaintiff’s roles did not involve personal participation in diplomatic or political operations, but rather activities akin to those carried out by private persons. The alleged discriminatory acts were not inherently sovereign or governmental.
The court rejected the Appellant’s reliance on earlier broader tests of sovereign acts, particularly the decision in Sengupta, favoring the more restrictive approach endorsed in Benkharbouche. It emphasized that state immunity applies only where the employment contract or conduct arises from sovereign authority.
Regarding the Plaintiff’s dual nationality, the court noted the tension between immunity applying to nationals and the protection of locally recruited staff by the forum state. It agreed that the Plaintiff was effectively local staff with dual nationality, and that the nature of the employment was more significant than nationality in determining immunity.
The court upheld the disapplication of section 4(2)(a) of the State Immunity Act 1978 in this case, consistent with the Supreme Court’s prior disapplication of related provisions in Benkharbouche, to ensure compatibility with human rights obligations under the ECHR.
On diplomatic immunity, the court found that it is personal to the diplomatic agent and cannot be invoked by the sending State in employment claims brought by administrative or technical staff. The Appellant failed to demonstrate a customary international law rule supporting a broader claim.
The court also expressed concern at the delay in resolving the case, noting the lengthy period since the alleged dismissal without a merits hearing.
Holding and Implications
The court DISMISSED THE APPEAL on all grounds.
The direct effect is that the Plaintiff’s claims under the Equality Act 2010 may proceed, with state and diplomatic immunity defenses rejected in this context. The court invited further submissions on whether to declare section 4(2)(a) of the State Immunity Act 1978 incompatible with the European Convention on Human Rights. No new precedent was established beyond affirming the application of existing principles as articulated in Benkharbouche.