Factual and Procedural Background
The Appellant is the foreign State’s embassy (Cultural Bureau) in the United Kingdom; it forms part of the foreign State’s Ministry of Education and has no separate legal identity. The Respondent, who holds dual Lebanese and British nationality and is of the Catholic faith, was employed by the Appellant from 18 January 2010 until 17 January 2018. Although given titles such as “student coordinator for health affairs” and “Secretary,” the Employment Tribunal found her work to be essentially clerical and administrative.
On 19 March 2018 the Respondent issued Employment Tribunal proceedings alleging direct religious discrimination and harassment under the Equality Act 2010. Other contractual and statutory claims were later withdrawn. The Appellant pleaded State immunity under the State Immunity Act 1978 (“SIA 1978”).
In June 2021 the Employment Tribunal (Judge Brown) held that the Respondent’s role was not an exercise of sovereign authority and therefore immunity did not apply. The Employment Appeal Tribunal rejected the Appellant’s appeal in November 2022. Permission to appeal was granted by the Court of Appeal, but the Appellant’s solicitors ceased to act in March 2024. The Appellant sought an adjournment, did not attend the hearing on 13 March 2024, and the Court of Appeal dismissed the appeal for non-attendance.
After reinstating solicitors, the Appellant sought permission to appeal to the Supreme Court. Permission was granted on 1 July 2024. The present judgment of the Supreme Court (per Judge Lloyd-Jones, with four concurring Justices) addresses that appeal.
Legal Issues Presented
- Whether an appellate court is under a duty, pursuant to section 1(2) SIA 1978, to consider State immunity of its own motion when the foreign State does not attend the hearing, and whether the Court of Appeal complied with that duty.
- Whether the Employment Tribunal applied the correct test when deciding that the Respondent’s employment was not an exercise of sovereign authority.
- The effect of the State Immunity Act 1978 (Remedial) Order 2023 on the applicable immunity test.
Arguments of the Parties
Appellant's Arguments
- Section 1(2) SIA 1978 imposes a mandatory duty on every “court,” including appellate courts, to raise and give effect to immunity even if the State is absent.
- The Respondent’s functions—especially handling student matters and occasional access to confidential information—were sufficiently connected to governmental functions to qualify as sovereign acts.
- The Employment Tribunal adopted too narrow a test, contrary to authority such as Sengupta v Republic of India.
- Even if the original contract was not sovereign, dismissal and related decisions were sovereign exercises engaging immunity under the second limb identified in Benkharbouche.
Respondent's Arguments
- The section 1(2) duty does not extend to appellate courts; failing to attend is a procedural default that should bar further consideration.
- The Employment Tribunal correctly applied the guidance in Benkharbouche; the Respondent’s tasks were purely administrative and lacked proximity to governmental decision-making.
- The Remedial Order 2023 confirms that immunity should only extend where the employment is or the impugned acts are exercises of sovereign authority, which is not the case here.
- No evidence links the Respondent’s dismissal to sensitive sovereign interests such as national security.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Benkharbouche v Embassy of the Republic of Sudan [2017] UKSC 62 |
Immunity extends only to employment that is an exercise of sovereign authority; domestic/ancillary staff generally not immune. |
Primary authority for assessing whether administrative staff roles attract State immunity. |
| Jurisdictional Immunities of the State (Germany v Italy) [2012] ICJ Rep 99 |
State immunity is a mandatory rule derived from sovereign equality. |
Supports the proposition that domestic courts breach international law if they exercise jurisdiction where immunity exists. |
| Jones v Ministry of the Interior of Saudi Arabia [2006] UKHL 26 |
Where immunity applies, national courts lack jurisdiction. |
Cited to reinforce the compulsory nature of respecting immunity. |
| Mighell v Sultan of Johore [1894] 1 QB 149 |
Court must recognise immunity of its own motion even if the sovereign does not appear. |
Relied on to show historic common-law duty mirrored in section 1(2). |
| NML Capital Ltd v Republic of Argentina [2011] UKSC 31 |
Reaffirms the court’s duty to acknowledge immunity sua sponte. |
Supports extension of the duty to appellate courts. |
| United Arab Emirates v Abdelghafar [1995] ICR 65 |
Appellate tribunals must correct lower courts’ failure to apply immunity. |
Treated as direct authority that section 1(2) binds appeal courts. |
| Republic of Yemen v Aziz [2005] EWCA Civ 745 |
Section 1(2) imposes an inquiry obligation on courts. |
Cited to outline scope of judicial inquiry into possible immunity. |
| Sengupta v Republic of India [1983] ICR 221 |
Early (now disapproved) broad view of embassy immunity. |
Referenced; Supreme Court agrees it is over-expansive and not followed. |
| Cudak v Lithuania (2010) 51 EHRR 15 |
European Court test: did duties call for personal involvement in diplomatic operations? |
Used to support narrow, function-based approach adopted by Tribunal. |
Court's Reasoning and Analysis
Issue 1 – Duty of the Court of Appeal: Section 1(2) SIA 1978 uses mandatory, general language requiring any court, defined in section 22(1) to include tribunals and appellate courts, to give effect to immunity even if the State does not appear. Historic common-law decisions (Mighell) and modern appellate-level cases (Abdelghafar; Aziz) confirm the same duty. International instruments (ECSI 1972; UNCSI 2004) also oblige domestic courts to act ex officio. Therefore, the Court of Appeal erred in dismissing the appeal solely for non-appearance without first determining immunity or granting an adjournment to facilitate that determination.
Issue 2 – Correctness of the Employment Tribunal Test: The Tribunal applied the two-limb analysis identified in Benkharbouche and now reflected in section 16(1)(aa) SIA 1978 as amended: (a) was the contract entered into in the exercise of sovereign authority; (b) were the impugned acts sovereign. It made detailed, uncontested factual findings: the Respondent’s tasks were routine clerical, data-entry and basic secretarial duties, with no decision-making, policy work, or meaningful use of confidential state information. Any access to sensitive data was incidental and unutilised. Accordingly, her employment lacked sufficient proximity to the mission’s governmental functions and was not sovereign in character.
Issue 3 – Impact of the Remedial Order 2023: The Order narrows section 16 to bring domestic law into line with Benkharbouche and customary international law. Although some alleged discriminatory acts preceded the Order’s commencement, EU-law-derived claims survive via article 47 of the Charter and transitional provisions in the European Union (Withdrawal) Act 2018. Hence, the substantive legal test is the same for the whole claim period.
Application of Second Limb Argument: The Appellant’s late contention that dismissal decisions themselves were sovereign failed: the Respondent merely sought damages, not reinstatement; no evidence linked her treatment to state security or diplomatic policy.
Because a correct application of the law would have led to the same conclusion—that immunity does not arise—the Supreme Court declined to disturb the substantive outcome notwithstanding the procedural error by the Court of Appeal.
Holding and Implications
HOLDING: The appeal is DISMISSED.
Implications: The Supreme Court confirms that every level of the judiciary, including appellate courts, must consider State immunity of its own initiative when a foreign State does not appear. The judgment re-affirms the narrow, function-based approach of Benkharbouche and endorses the Remedial Order 2023. Practically, administrative and technical embassy staff whose duties are not closely connected to sovereign functions may litigate employment rights in UK tribunals, and foreign States cannot rely on absence or procedural defaults to circumvent judicial scrutiny of immunity claims. No new precedent is created, but the Court consolidates existing principles and clarifies appellate duties under section 1(2) SIA 1978.