The Kingdom of Spain v L Lorenzo
[2023] EAT 153
The Royal Embassy of Saudi Arabia (Cultural Bureau) v A Alhayali
5 December 2023
[2023] EAT 149
Employment Appeal Tribunal
A former embassy employee sued the Saudi Embassy for discrimination and stress. The court decided the Embassy had agreed to the lawsuit but wrongly decided the employee's job wasn't important enough to protect the Embassy from the lawsuit. However, the court correctly ruled that the lawsuit could proceed because it included a claim for stress (mental injury).
Key Facts
- •Ms Alhayali, employed by the Royal Embassy of Saudi Arabia (Cultural Bureau) from 2013-2018, claimed discrimination and personal injury.
- •The Embassy initially accepted the Employment Tribunal's (ET) jurisdiction over EU law claims, then reasserted state immunity.
- •The ET found the Embassy had validly submitted to its jurisdiction and that the claims did not involve sovereign authority; alternatively, section 5 of the State Immunity Act 1978 disapplied immunity for the personal injury claim.
- •The Embassy appealed, arguing the ET erred in failing to consider an official statement on authority to waive immunity, misapplying the sovereign activity test, and misinterpreting section 5 of the SIA regarding psychiatric injury.
Legal Principles
State immunity limits the jurisdiction of courts over other states, applying only to sovereign acts (jure imperii), not private acts (jure gestionis).
Benkharbouche v Embassy of Sudan [2017] ICR 1327 SC
A state submits to jurisdiction by express agreement or by taking steps in proceedings, requiring authorization by the head of the diplomatic mission.
State Immunity Act 1978 (SIA), sections 2(2), 2(3), 2(7)
Section 5 of the SIA disapplies state immunity for claims concerning personal injury caused by acts or omissions in the UK.
State Immunity Act 1978 (SIA), section 5
When determining sovereign activity, the focus should be on the functions performed, not the employee's hierarchical position. The test is whether the functions are 'sufficiently close' to governmental functions.
Benkharbouche v Embassy of Sudan [2017] ICR 1327 SC
Outcomes
Appeal allowed on grounds 1, 2, and 3.
The ET erred by not giving weight to the Embassy's statement on authority to waive immunity, misapplying the test for sovereign activity, and reaching an incorrect conclusion on the facts.
Appeal dismissed on grounds 4 and 5.
The ET correctly followed Ogbonna in finding that section 5 of the SIA disapplies state immunity for psychiatric injury claims, and this decision was not overturned.