Generic filters

"The barristers are reliable specialists in their field who provide high quality legal advice and representation. They also understand their clients"

Chambers & Partners

Appeal: State Immunity in the employment context


Mr Justice Bourne has handed down judgment in the The Royal Embassy of Saudi Arabia (Cultural Bureau) v Alhayali [2023] EAT 149.

Background Facts

Ms Alhayali (“the Claimant”) was employed by the Saudi Arabian Embassy (“the Embassy”) in its Academic, Cultural Affairs and Ticketing departments.

On 30 January 2018 the Claimant presented a claim to the Employment Tribunal (“the ET”). The Claimant made various discrimination claims under the Equality Act 2010. The Embassy, in their Grounds of Resistance, asserted State Immunity under the State Immunity Act 1978 (‘the SIA’).

At a preliminary hearing in March 2019 the Employment Judge drew the Embassy’s attention to the Supreme Court’s decision in Benkharbouche v Embassy of Sudan [2017] ICR 1327 (SC). In Benkharbouche the Supreme Court had held that domestic law providing blanket immunity was disapplied (as it applied to claims deriving from EU law) except to the extent that the Embassy in question was entitled to immunity under customary international law. The Claimant had brought various claims deriving from EU law (most obviously her discrimination claims). The ET ordered the Embassy to make clear whether they conceded jurisdiction over such claims as were derived from EU law.

On 9 April 2019 the Embassy’s then solicitors wrote to the ET conceding jurisdiction over  claims derived from EU law. Litigation continued and parties took various procedural steps to prepare for trial.

On 4 August 2021 the Embassy sought to “reassert” state immunity. A PH was listed to consider this application. The Embassy provided a stamped but unsigned document (on Embassy headed paper) asserting the Ambassador had not authorised the waiver of state immunity.

The decision below

At a preliminary hearing the Employment Tribunal decided:

  1. The Embassy had submitted to the ET’s jurisdiction;
  2. The Embassy’s employment of the Claimant was not an exercise of sovereign authority (meaning that regardless of whether the Embassy had submitted to the jurisdiction, the Embassy did not have the benefit of state immunity);
  • That even if the Embassy otherwise had state immunity this was disapplied by section 5 of the SIA in respect of the Claimant’s claim that the Embassy caused her psychiatric injury, that being a claim for personal injury.

The Embassy appealed to the EAT on five grounds:

  1. The ET erred in failing to attach due weight to the stamped document;
  2. That the ET erred in respect of its application of the test as to whether the Embassy was entitled to immunity under customary international law (the test to be applied in the context of an employment dispute being set out in Benkharbouche);
  • In applying Benkharbouche, the ET failed to properly consider the context in which the Claimant carried out her functions;
  1. That the personal injury exception to state immunity does not apply to employment claims; and
  2. That (if the personal injury exception did apply to state immunity claims) this exception did not apply in cases of psychiatric injury.

Legal Framework

The SIA provides that sovereign states are immune from the jurisdiction of the courts of the United Kingdom save for limited exceptions as provided for in the Act. These exceptions include:

  • Where a state validly submits to jurisdiction (section 2 of the SIA).
  • For employment contracts made or at least partly performed in the UK (section 4 of the SIA). This does not apply where the individual was neither a national of the UK nor habitually resident there (section 4(2)(b) of the SIA) or for proceedings concerning the employment of the members of a mission or of a consular post (section 16(1)(a) of the SIA). There was no dispute that the Claimant in the instant case was a member of a mission for the purposes of section 16 of the SIA.
  • For personal injury claims (section 5 of the SIA).

In Benkharbouche the Supreme Court was concerned with whether the provisions of the SIA were compatible with Article 6 of the ECHR. Lord Sumption explained that provisions giving immunity would be incompatible unless such provisions could be justified by giving effect to the requirements of customary international law. Particularly, states would be immune in an employment claim if the claim arises out of an inherently sovereign or governmental act of the foreign state ([53] of Benkharbouche).

Lord Sumption referred to the Vienna Convention on Diplomatic Relations, which divides staff into three broad categories: diplomatic agents; administrative and technical staff; and staff in domestic service of the mission ([55] of Benkharbouche). The former clearly carried out inherently governmental acts in the exercise of a sovereign authority, whilst the latter did not. The middle category involve staff carrying out ancillary and supportive functions. Some of this middle category of staff (although not all of them) might also be carrying out sovereign authority. Lord Sumption gave the example of cypher clerks as administrative and technical staff carrying out sovereign functions.

The Supreme Court held that sections 4(2)(b) and 16(1)(a) which barred claims irrespective of the sovereign character of the relevant act of the foreign state were incompatible with Article 6. For the same reasons, they also violated Article 47 of the EU Charter of Fundamental Rights. The remedy for this violation was the disapplication of the relevant provisions of the SIA (in respect of those claims derived from EU law).

Ground 1 of Appeal

Under section 2(7) of the SIA the head of mission was deemed to have authority to submit to jurisdiction. The Embassy’s case below was that the head of mission had not personally authorised the Embassy solicitors’ submission to the jurisdiction. The content of the stamped statement was to the effect that the head of mission (the Ambassador) had not authorised submission to the jurisdiction.

Bourne J held that the ET at first instance had not given any weight to the unsigned stamped statement from the Embassy. On this basis he upheld Ground 1.

However, Bourne J warned against parties relying on such unsigned statements: “a state party in a situation such as this would be well advised to place formal witness evidence before the ET” [75]. Bourne J also rejected any argument on the part of the Embassy that the stamped statement should be given any special status [74].

Grounds 2-3 of Appeal

Bourne J held that both grounds 2 and 3 were questions of law: following the application of the correct test, either a state had immunity or not. It could not be that, on the same facts, one judge could decide that a state was immune, and another decide they are not [88].

The test that should be applied in light of Benkharbouche is whether the work which the Claimant did was “sufficiently close” to the exercise of sovereign authority [92].

Bourne J then applied this test to the findings of fact made at first instance. He considered that, although the Claimant was engaged in an ancillary and supportive role, some of her functions was an exercise of sovereign authority “of a kind contemplated by the Vienna convention” [97]. Particularly “By sifting compliant and non-compliant guarantee requests, writing reports on funding requests and discussing art exhibits with visitors and British students and teachers, she played a part, even if only a small one, in protecting the interests of the Saudi state and its nationals in the UK and in promoting Saudi culture in the UK” [ibid]. The appeal therefore succeeded on grounds 2 and 3.

Ground 4 of Appeal

Ground 4 of the Embassy’s appeal was that the personal injury exception at section 5 of the SIA did not apply in state immunity claims. The Embassy contended that the ET took an overly “textual/logical approach to construction of the interplay between sections 4, 5 and 16 without reference to the wider purpose of reflecting international law” [119]. It was submitted that section 5 was “originally intended to cover |the negligent use of motor vehicles by state officials, and the status of this general exception as a matter of customary international law is uncertain” [120].

Bourne J disagreed, holding that there was a lack of material to demonstrate that the ‘territorial tort’ exception to immunity should not apply to an embassy employment dispute with a personal injury element [ibid]. “All the indications in the SIA are that Parliament did not intend to provide that the exception should not apply to personal injury claim by an embassy official. Section 16 makes an express carve-out from section 4 but makes no express carve-out from section 5, although it could have done so” [128].

In coming to this finding Bourne J agreed with (and refused to depart from) the decision of Underhill P in Federal Republic of Nigeria v Ogbonna [2012] 1 WLR 139 (EAT).

Ground 5 of Appeal

The Embassy contended that the personal injury exception did not extend to claims for psychiatric injury was extended to psychiatric injury claims: this did not confirm with the understanding of that term in international law. In making this argument the Embassy again argued the EAT should depart from its decision in Ogbonna.

That section 5 should be construed to reflect international law was acknowledged in Ogbonna, as that was Parliament’s intention [113]. In Ogbonna, having considered the authorities, Underhill P held there was no fixed meaning of the term in international law nor anything specifically excluding psychiatric injury from its definition. As such, he ruled that ‘personal injury’ should be given its normal meaning in domestic law. Bourne J concurred, refusing to depart from applying Ogbonna [139]. Ground 5 of the appeal was also dismissed.

Case summary by Karim Pal.

The judgment can be read here.

Madeline Stanley was instructed on behalf of Ms Alhayali by Rumana Bennett of Saltworks Law.


Relevant members
Madeline Stanley Karim Pal

Key contacts

Karim Pal

Karim Pal
Shortlist Updated

Out of hours

William Meade (Senior Clerk)

07970 649 755