News

12/09/2025

Court of Appeal judgment: State immunity and embassy employment

News, Employment & discrimination

The Court of Appeal (Sir Andrew McFarlane, Bean LJ and Coulson LJ) has handed down judgment in Alhayali v Royal Embassy of Saudi Arabia (Cultural Bureau) [2025] EWCA Civ 1162.

Overview

Ms Alhayali 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 the course of these proceedings, asserted State Immunity under the State Immunity Act 1978 (‘the SIA’)

The ET determined that the Embassy did not have the benefit of state immunity in respect of Ms Alhayali’s claims. The ET’s judgment was overturned by the Employment Appeal Tribunal (“the EAT”). The Court of Appeal has upheld Ms Alhayali’s appeal.

The judgment

At the time of the ET’s determination of the point, the question of whether the Embassy had the benefit of state immunity in respect of EU-law derived claims was governed by the principles set out in the decision of the Supreme Court in Benkharbouche v Embassy of Sudan [2017] ICR 1327 (SC). The relevant provisions of the SIA have subsequently been amended by the State Immunity Act 1978 (Remedial) Order 2023. The parties in Ms Alhayali’s appeal agreed the remedial order made no difference to the law to be applied in this case: see [13] of the judgment.

In very general terms individuals employed by embassies fall into three categories: (i) diplomatic agents (ii) administrative and technical staff and (iii) staff in domestic service (see [55] of Lord Sumption’s judgment in Benkharbouche). There was no dispute Ms Alhayali was a member of technical and administrative staff. The embassy would have the benefit of state immunity if Ms Alhayali’s job functions were “sufficiently close to the governmental functions of the mission” [emphasis added] (see also [55] of Benkharbouche).

The ET made findings of fact as to Ms Alhayali’s job functions and determined that these functions were not “sufficiently close” to the governmental functions of the mission. The EAT had held that while the ET’s findings of facts could not be disturbed, the ET’s conclusion based on those findings was “either legally right or legally wrong.” The EAT overturned the ET’s decision as to whether or not Ms Alhayali’s functions were “sufficiently close” to the governmental functions of the mission.

The Court of Appeal restored the decision of the ET. In particular the Court of Appeal held that the question of whether or not an individual’s job functions were “sufficiently close” to the governmental functions of the mission was “an evaluative decision for the fact-finding Tribunal”: [26]. Bean LJ said at [27]:

“I do not accept that sovereign immunity cases (and in particular those involving employees in the middle category of Lord Sumption’s classification) have become a unique category of case where the party losing before the ET can appeal as of right on the ground that the conclusion of the tribunal is always a question of law.”

In addition the Court of Appeal judgment includes the following observations:

1. Had the Embassy waived state immunity? The Embassy’s then solicitors had on 9 April 2019 accepted in correspondence that the ET had jurisdiction in respect of Ms Alhayali’s EU-law derived claims: [3]. On 4 August 2021 (and after both parties had taken substantial steps to progress the case), the Embassy’s solicitors purported to “re-assert” state immunity on the basis that the conduct which had constituted submission to the jurisdiction had not in fact been authorised by the head of mission or the person for the time being performing his functions: [5].

2. The Embassy relied on the judgment of the Court of Appeal in Republic of Yemen v Aziz [2005] ICR 1391 as providing that an embassy is not bound by its solicitors’ concession as to jurisdiction if (as a matter of fact) that concession is not authorised by the relevant individual. Without determining the point, all three members of the Court expressed concern about the decision in Aziz: see [46], [48] and [49].

3. Embassy employment claims and personal injury: Section 5 of the SIA provides that a state is not immune as respect proceedings in respect of “personal injury or death.” Ms Alhayali argued that in the event that the Embassy had the benefit of state immunity in respect of her claims in general, the Embassy did not have state immunity in so far as Ms Alhayali’s discrimination claims were personal injury claims in accordance with section 5 of the SIA.

4. In Federal Republic of Nigeria v Ogbonna [2012] 1 WLR 139, the EAT held that section 5 constituted a free-standing exception to the state immunity. In the instant appeal, the EAT had followed Ogbonna. Bean LJ (obiter) expressed the view that Ogbonna was wrong in so far as it allows embassy employees to bring employment claims in so far as they are personal injury claims in circumstances in which the embassy would otherwise have had the benefit of state immunity under sections 4 and 16 of the SIA: see [33].

The judgment can be read here.

Madeline Stanley was instructed by the Anti-Trafficking and Labour Exploitation Unit on behalf of Ms Alhayali.