CA-2024-000624 & CA-2024-000625 - [2025] EWCA Civ 1162

16 Excluded matters

This Part of this Act does not affect any immunity or privilege conferred by the Diplomatic Privileges Act 1964 or the Consular Relations Act 1968; and—

section 4 above does not apply to proceedings concerning the employment of the members of a mission within the meaning of the Convention scheduled to the said Act of 1964 or of the members of a consular post within the meaning of the Convention scheduled to the said Act of 1968;

section 6(1) above does not apply to proceedings concerning a State’s title to or its possession of property used for the purposes of a diplomatic mission.”

Benkharbouche

The Supreme Court decision in Benkharbouchev Embassy of the Republic of Sudan; Janah v Libya [2019] AC 277; [2017] UKSC 62 in October 2017 concerned employment law claims by two employees of foreign embassies based in London. The central question was whether the provisions of the 1978 Act were incompatible with the right of access to a court under Article 6 of the European Convention on Human Rights. Giving a judgment with which all the other Justices agreed, Lord Sumption JSC explained that provisions giving immunity to foreign states would be incompatible with Article 6 unless they were justified because they gave effect to the requirements of customary international law.

Lord Sumption said:

As a matter of customary international law, if an employment claim arises out of an inherently sovereign or governmental act of the foreign state, the latter is immune. It is not always easy to determine which aspects of the facts giving rise to the claim are decisive of its correct categorisation, and the courts have understandably avoided overprecise prescription. The most satisfactory general statement is that of Lord Wilberforce in The I Congreso [1983 1 AC 244 at p 267:

“The conclusion which emerges is that in considering, under the ‘restrictive’ theory whether state immunity should be granted or not, the court must consider the whole context in which the claim against the state is made, with a view to deciding whether the relevant act(s) upon which the claim is based, should, in that context, be considered as fairly within an area of activity, trading or commercial, or otherwise of a private law character, in which the state has chosen to engage, or whether the relevant act(s) should be considered as having been done outside that area, and within the sphere of governmental or sovereign activity.”

In the great majority of cases arising from contract, including employment cases, the categorisation will depend on the nature of the relationship between the parties to which the contract gives rise. This will in turn depend on the functions which the employee is employed to perform.

The Vienna Convention on Diplomatic Relations divides the staff of a diplomatic mission into three broad categories: (i) diplomatic agents, ie the head of mission and the diplomatic staff; (ii) administrative and technical staff; and (iii) staff in the domestic service of the mission. Diplomatic agents participate in the functions of a diplomatic mission defined in article 3, principally representing the sending state, protecting the interests of the sending state and its nationals, negotiating with the government of the receiving state, ascertaining and reporting on developments in the receiving state and promoting friendly relations with the receiving state. These functions are inherently governmental. They are exercises of sovereign authority. Every aspect of the employment of a diplomatic agent is therefore likely to be an exercise of sovereign authority. The role of technical and administrative staff is by comparison essentially ancillary and supportive. It may well be that the employment of some of them might also be exercises of sovereign authority if their functions are sufficiently close to the governmental functions of the mission. Cypher clerks might arguably be an example. Certain confidential secretarial staff might be another: see Governor of Pitcairn and Associated Islands v Sutton [1995] 1 NZLR 426 (New Zealand Court of Appeal). However, I find it difficult to conceive of cases where the employment of purely domestic staff of a diplomatic mission could be anything other than an act jure gestionis. The employment of such staff is not inherently governmental. It is an act of a private law character such as anyone with the necessary resources might do.”

Lord Sumption continued:

This approach is supported by the case law of the European Court of Human Rights, which I have already summarised. In[four cases, including Cudak v Lithuania] concerning the administrative and technical staff of diplomatic missions, the test applied by the Strasbourg Court was whether the functions for which the applicant was employed called for a personal involvement in the diplomatic or political operations of the mission, or only in such activities as might be carried on by private persons. In Mahamdia v People’s Democratic Republic of Algeria (Case C-154/11) [2013] ICR 1, para 55-57, the Court of Justice of the European Union applied the same test, holding that the state is not immune “where the functions carried out by the employee do not fall within the exercise of public powers.” The United States decisions are particularly instructive, because the Foreign State Immunity Act of the United States has no special provisions for contracts of employment. They therefore fall to be dealt with under the general provisions relating to commercial transactions, which have been interpreted as confining state immunity to exercises of sovereign authority: see Saudi Arabia v Nelson 507 US 349, 360 (1993). The principle now applied in all circuits that have addressed the question is that a state is immune as regards proceedings relating to a contract of employment only if the act of employing the plaintiff is to be regarded as an exercise of sovereign authority having regard to his or her participation in the diplomatic functions of the mission……….Although a foreign state may in practice be more likely to employ its nationals in those functions, nationality is in itself irrelevant to the characterisation: El-Hadad v United Arab Emirates 216 F 3d 29 (DC Cir, 2000), at 4, 5. …………..

I would, however, wish to guard against the suggestion that the character of the employment is always and necessarily decisive. Two points should be made, albeit briefly since neither is critical to this appeal.

The first is that a state’s immunity under the restrictive doctrine may extend to some aspects of its treatment of its employees or potential employees which engage the state’s sovereign interests, even if the contract of employment itself was not entered into in the exercise of sovereign authority. Examples include claims arising out of an employee’s dismissal for reasons of state security. They may also include claims arising out of a state’s recruitment policy for civil servants or diplomatic or military employees, or claims for specific reinstatement after a dismissal, which in the nature of things impinge on the state’s recruitment policy. These particular examples are all reflected in the United Nations Convention and were extensively discussed in the preparatory sessions of the International Law Commission. They are certainly not exhaustive. ………

The second point to be made is that the territorial connections between the claimant on the one hand and the foreign or forum state on the other can never be entirely irrelevant, even though they have no bearing on the classic distinction between acts done jure imperii and jure gestionis. This is because the core principle of international law is that sovereignty is territorial and state immunity is an exception to that principle. As the International Court of Justice observed in Jurisdictional Immunities of the State, at para 57, the principle of state immunity

“has to be viewed together with the principle that each State possesses sovereignty over its own territory and that there flows from that sovereignty the jurisdiction of the State over events and persons within that territory. Exceptions to the immunity of the State represent a departure from the principle of sovereign equality. Immunity may represent a departure from the principle of territorial sovereignty and the jurisdiction which flows from it.””

In Benkharbouche both the claimants were domestic staff. In the next case to come before the UK Supreme Court concerning state immunity of embassy employees, Constatine v Royal Embassy of Saudi Arabia (Cultural Bureau) [2025] 1 WLR 1207, the claimant was a member of the technical and administrative staff of the mission. The first issue before the Supreme Court was how the Court of Appeal should have proceeded in circumstances where the appellant state had not appeared at the hearing. The second issue was how the substantive appeal should be disposed of. On that issue, the court made it clear that they were applying the principles in Benkharbouche and were not departing from them. It is of interest that the ET hearing in Constatine had been before EJ Brown, whose decision, handed down on 30 June 2021, was approved by the Supreme Court.

The decision of EJ Brown on the s 4 issue

EJ Brown held:

I considered, first, whether the Respondent’s employment of the Claimant was an exercise of sovereign authority. If it was not, the Tribunal has jurisdiction to hear her complaints against the Respondent based on EU law.”

The Respondent contended that the functions performed by the Claimant in her role fell within the sphere of governmental or sovereign activity and included the exercise of sovereign authority which had been delegated to her by the Respondent’s officials. It contended that the Claimant's role was intrinsically linked with and supportive of protecting and safeguarding the interests of student nationals of Saudi Arabia, being “functions that are inherently governmental” and, therefore, the exercise of sovereign authority. It contended that promoting the culture and traditions of a foreign State and protecting the interests of their nationals whilst studying abroad, are inherently part of the mission’s sovereign functions in promoting cordial relations between the Respondent and the United Kingdom and the Respondent's diplomatic life generally, Article 3 of the Vienna Convention on Diplomatic Relations.

On my findings of fact, while the functions of the Respondent itself may have been inherently governmental, I considered that all the Claimant’s duties were truly ancillary and supportive to this, as described by Lord Sumption in Benkharbouche, at [55]. Essentially, the Claimant’s role in the Education Department involved collating and recording documents which related to student nationals of Saudi Arabia and their studies in the UK. The documents she collated did not relate to government officials. She facilitated the studies of private citizens. The Claimant did not have any important decision-making functions, but referred any nonstandard matters to her Head of Department. In her Cultural Bureau role, she provided reports on proposals made by Saudi nationals for cultural events. Again, she had no decision-making role in whether to approve these projects, or make funding available for them. The Claimant also proof-read articles for journals and assisted in the practical arrangements for events. All these were functional, practical, supportive duties.

On my findings of fact, the Claimant provided information to her manager for him, or the Attaché, to make the relevant decisions. Her functions were indeed “essentially ancillary and supportive” to the governmental functions of the Respondent. The Claimant’s correspondence with external bodies was confined to correspondence concerning students and their universities. This was not a governmental matter but involved making practical arrangements for Saudi nationals studying abroad.

Her role did not comprise “all typing and secretarial services necessary to operate” Dr Bin Ghali’s office and did not include typing communications between him and government officials. It did not include typing his “official instructions”, unlike in Governor of Pitcairn and Associated Islands v Sutton. Her role was not close to such governmental functions. The Claimant was copied into correspondence directly concerning her own role.

It is logical that the Claimant might have had access to some information about the children of government officials, or members of the Royal family, in her role student adviser role. However, her role was a purely administrative one, dealing with requests for letters of guarantee and funding for travel.

Likewise, her functions in the Ticketing Department were simply to arrange student travel through the Safeer system. The Claimant never worked there because she was absent from work throughout the relevant period by reason of sick leave and annual leave. If she had worked, her functions would have been purely practical and administrative tasks arranging travel for Saudi student nationals. This had little connection with any governmental function of the mission.

I did not agree with the Respondent’s submission that, because the Claimant’s job role assisted the Respondent to carry out its governmental functions as described in Article 3 of the Convention on Diplomatic Relations, her employment was an exercise of sovereign authority.

The Respondent’s submission appeared to be inconsistent with the dictum of Lord Sumption in Benkharbouche, at [55] and the approach of the ECHR in Cudak v Lithuania. Lord Sumption’s words suggest that technical and administrative staff, in general, exercise ancillary and supportive functions. He does not suggest that their employment is an exercise of sovereign authority simply because they support or assist the governmental functions of the mission. Rather, he says that the employment of “some of them” might also be exercises of sovereign authority if their functions are “sufficiently close” to the governmental functions of the mission (emphasis added).

Lord Sumption’s examples of such administrative staff, whose functions might be sufficiently close to the governmental functions of the mission, were cypher clerks and confidential secretarial staff. Such employees are necessarily privy to highly confidential governmental communications. On the agreed facts in Governor of Pitcairn and Associated Islands v Sutton, the secretary typed “all communications between the Governor, the Commissioner and Pitcairn, including the Governor’s official instructions”. Her role therefore encompassed typing governmental-level communications.

In Cudak v Lithuania, the applicant was employed at the Polish Embassy in Vilnius. The functions of an Embassy are defined in Art 3 VCDR. The functions of administrative staff at Embassies are inherently likely to be supportive of the activities set out in Art 3. However, the ECHR did not suggest that, because the applicant was employed in the Embassy, and carried out administrative functions there, that her employment should be considered to be an act of sovereign authority.

On the contrary, the ECHR in Cudak said that it had not been demonstrated how the administrative functions of the applicant in “recording international conversations, typing, sending and receiving faxes, photocopying documents, providing information and assisting with the organisation of certain events” could objectively have been related to the sovereign interests of the Polish Government.

The Claimant’s functions throughout her employment were similar to those of the applicant in Cudak. I did not consider that, because the Claimant’s functions were broadly supportive of the Respondent’s Article 3 VCDR functions, that meant that her employment was an act of sovereign authority.

On the facts, the Claimant’s functions were not “close” to the governmental functions of the mission; they were relatively low-level ancillary and supportive functions.

The Claimant’s employment was not an exercise of sovereign authority. The Tribunal has jurisdiction to hear her complaints against the Respondent based on EU law.”

EJ Brown went on at paragraphs [196] to [202] to hold that there were no acts by the Embassy staff relevant to the present claim which constituted acts of sovereign authority. There has been no appeal from that part of her decision.

The EAT decision on the s 4 issue

On the s 4 issue, Bourne J said:

Whichever side of the line this case falls upon, it is close to the boundary. The answer is not obvious, as it would be for cleaning staff on the one hand or perhaps for some senior managers on the other. It was therefore a relatively difficult case to decide.

I also consider that, once a tribunal has made findings of fact about the duties of the employee in question, there can logically be only one right answer to the question as a matter of law. It has been suggested that two different EJs could validly arrive at different conclusions on the same facts, but in my judgment that cannot be right. Sovereign immunity removes the tribunal’s jurisdiction. That cannot be done as a matter of individual impression, let alone discretion. So, although I agree that two EJs could reasonably disagree about the answer in a borderline case, it seems to me that one of those judges would be right, and the other wrong, as a matter of law.

I am therefore in no doubt that both grounds 2 and 3 raise a genuine issue of law. EJ Brown’s findings of fact cannot be disturbed. Her conclusion based on those facts was either legally right or legally wrong.

It was first necessary to decide whether functions of a sovereign kind were being discharged at all. The EJ was slightly non-committal, saying at [183] that “the functions of the Respondent itself may have been inherently governmental”. That, with respect, was not entirely satisfactory, because the exercise of analysis necessitated the clear identification of any sovereign activity in order to decide whether the Claimant’s work was sufficiently close to it.

I am in no doubt that the work of the Respondent’s Academic and Cultural Affairs departments, looking after the interests of Saudi students in the UK and promoting Saudi academic and artistic work, involved the exercise of sovereign authority. Those are functions identified in Article 3.1(b) and (e) of the Vienna Convention.

Ground 2 focuses on whether the EJ then asked the right question. The use of terminology is of clear relevance to that ground. Applying Benkharbouche, the test was not whether the Claimant’s work was “ancillary and supportive” to the exercise of sovereign authority. It was whether her ancillary and supportive work was “sufficiently close” to that exercise. In the passage quoted at the end of paragraph 39 above, those different tests appear to have been elided.

Ground 3 focuses on the application and outcome of that test. In that regard it may be helpful to consider what work would definitely not be sufficiently close. Leaving aside the terms “ancillary” and “supportive”, work of an insufficient kind might be described as being purely collateral to the exercise of sovereign authority. So, whilst the Head of the Cultural Affairs department was exercising sovereign authority, a person who cleaned his office was not. Nor was a person who drove him to work. A person who merely typed documents was probably not, though the Governor of Pitcairn case shows that a certain degree of trust or confidentiality might carry that individual across the line.

Then there was the example to which the EJ referred, of Cudak v Lithuania, where the European Court of Human Rights ruled that sovereign immunity did not apply. The Court stated at [70]: “The Court observes in particular that the applicant was a switchboard operator at the Polish Embassy whose main duties were: recording international conversations, typing, sending and receiving faxes, photocopying documents, providing information and assisting with the organisation of certain events. Neither the Lithuanian Supreme Court nor the respondent Government have shown how these duties could objectively have been related to the sovereign interests of the Polish Government.”

That bare description may invite some comparison with the present case but, given the lack of detail, caution is needed and previous cases should not simply be used as precedents (see Holland above). We do not know what “providing information” or assisting with event organisation actually consisted of. And the final sentence of the quotation above suggests that a lack of evidence was material to the outcome. So I am not convinced that the comparison with Cudak was directly helpful.

In fairness to the EJ, it seems clear that some of the Claimant’s activities, such as inputting information to a computer system, were of a purely clerical nature and purely collateral to any exercise of sovereign authority.

However, on the EJ’s findings of fact, I have concluded that when the correct test of “sufficiently close” rather than “ancillary and supportive” is applied, in the context of what was an exercise of sovereign authority by the Embassy of a kind contemplated by the Vienna Convention, some of the Claimant’s activities throughout the period of her employment passed the test. 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. To put it another way (reflecting French case law to which Lord Sumption referred in Benkharbouche at [56]), she was participating in the public service of the Embassy and not merely in the private administration of the Embassy.

I therefore conclude that ground 3 succeeds although, as I have said, this was a borderline and difficult case and it appears that the EJ was not greatly assisted by witness evidence called on behalf of the Respondent which she found to be unreliable.

I also allow the appeal on ground 2 on the basis that a lack of precision in the terminology of the analysis contributed to what I have found to be a legally erroneous outcome.

For the reasons I have explained above, there can be only one correct legal outcome on the EJ’s findings of fact, and therefore there is no scope for remitting this issue to the ET.”

Ms Darwin relied on and supported the reasoning of Bourne J. Ms Stanley, by contrast, submitted that EJ Brown made no error of law and there was no proper basis for the EAT to take a different view.