EAT Rules on Diplomatic and State Immunity in Race Discrimination Claim

Introduction

In the case of The Kingdom of Spain v L Lorenzo, the Employment Appeal Tribunal (EAT) deliberated on the applicability of diplomatic and state immunity in a race discrimination claim made under the Equality Act 2010 (EqA). The Tribunal examined whether the Kingdom of Spain could invoke diplomatic immunity, the distinction between sovereign and non-sovereign acts regarding state immunity, and the disapplication of certain sections of the State Immunity Act 1978 (SIA) under EU law.

Key Facts

Ms. L Lorenzo, a dual British and Spanish national, brought claims of direct race discrimination and harassment related to race under the EqA against her employer, the Kingdom of Spain. The Tribunal assessed the preliminary issues concerning diplomatic immunity under the Vienna Convention on Diplomatic Relations 1961 and state immunity as conferred by the SIA. The claims raised questions about whether they were barred by these immunities, given that the acts of discrimination were allegedly committed in the context of Lorenzo’s role at the Spanish Embassy in London.

Legal Principles

Diplomatic Immunity

The Tribunal had to consider whether the Kingdom of Spain, as the respondent State, could avail itself of diplomatic immunity, which is primarily conferred upon individual diplomatic agents per Article 31 of the Vienna Convention, and not upon the State itself. The legal principle was affirmed by the Supreme Court in prior cases, which highlighted that diplomatic immunity serves an essentially functional purpose, distinguishing it from state immunity.

State Immunity

Regarding state immunity, the Tribunal had to distinguish between inherently sovereign or governmental acts and private acts. Following the restrictive doctrine of state immunity, as explained in Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs, acts of a sovereign nature would typically garner immunity, while private acts would not. The Tribunal considered whether the acts complained of arose from Lorenzo’s role, which involved engaging with confidential documents and performing protocol-related duties.

EU Law and SIA

A central issue was whether certain sections of the SIA were contravening EU law, specifically Article 47 of the Charter of Fundamental Rights of the European Union, which ensures the right to an effective remedy. The Tribunal evaluated whether sections 4(2)(a) and 16(1) of the SIA, which barred employment claims against a State under specific conditions, could be disapplied in light of this EU law provision.

Outcomes

The Tribunal found that diplomatic immunity was not relevant as the claims were against the Kingdom of Spain, not an individual diplomat. The Tribunal held that the acts complained of were not sovereign acts of the State of Spain, given Lorenzo’s role did not involve direct involvement with sovereign functions. As a result, the Tribunal concluded that it was permissible to disapply section 4(2)(a) of the SIA as being contrary to EU law.

The EAT dismissed most of the grounds of appeal pursued by the respondent. However, the EAT agreed in principle with the respondent that the Tribunal should have considered the specific acts of discrimination when determining if the claimed discrimination arose out of sovereign or governmental acts. Despite this, the EAT concluded that the Tribunal’s ultimate decision was not perverse and would have been the same even if the acts of discrimination had been considered.

Conclusion

The case reaffirms the separation between diplomatic and state immunity, clarifying that the State cannot invoke diplomatic immunity in employment claims under the EqA. It illustrates that under EU law, provisions that grant absolute state immunity in employment matters can be disapplied if they conflict with fundamental rights enshrined in the Charter. The EAT’s decision in The Kingdom of Spain v L Lorenzo upholds the Tribunal’s approach in distinguishing between sovereign and non-sovereign acts and its application of the restrictive doctrine of state immunity to an employment discrimination case. The outcome underscores a tension between traditional principles of international law and the application of EU law in domestic legal disputes.