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

Lord Justice Bean:

Ms Abir Alhayali was employed by the Royal Embassy of Saudi Arabia Cultural Bureau (“the Embassy”) in London between January 2013 and 6 January 2018. Her work included processing requests from Saudi students studying in the UK and passing documents to her head of department for approval. On 30 January 2018, she lodged a claim in the employment tribunal (“ET”) for unfair dismissal, breach of contract, unlawful deductions from wages, discrimination on the grounds of disability, sex or belief, harassment and victimisation. The claim was eventually served through diplomatic channels. In its grounds of resistance, the Embassy asserted state immunity.

At a preliminary hearing on 19 March 2019, the Embassy was ordered to make clear whether it conceded that the ET had jurisdiction over such claims as were derived from European Union law. Ms Alhayali withdrew the claims based only on domestic law, that is to say unfair dismissal, unlawful deductions and breach of contract.

By an email of 9 April 2019, Howard Kennedy LLP, the solicitors then acting for the Embassy, wrote to the ET confirming that the Embassy “accepts the Tribunal has jurisdiction over claims which are derived from EU law, as reflected in paragraph 8(c) of the existing Grounds of Resistance.” Those Grounds of Resistance made reference to the decision of the Supreme Court in the Benkharbouche case, to which I shall come later.

Following this apparent submission to the jurisdiction and the withdrawal by the Claimant of her domestic law heads of claim, the ET case was progressed with substantial involvement from both sides for a period of over two years.

On 4 August 2021, Howard Kennedy wrote to the tribunal asking that the final hearing, then listed for 8 days from 21 February to 2 March 2022, should be vacated. The application stated that “our client is reasserting state immunity in these proceedings and we are instructed to engage for this purpose only.” The Embassy contended that it had not submitted to the jurisdiction in the correspondence of 9 April 2019, nor by the numerous subsequent steps taken in the proceedings, since these actions had not been authorised by the head of mission or the person for the time being performing the functions of the head of mission for the purposes of s 2(7) of the State Immunity Act 1978. It was argued that conduct on the part of a solicitor can constitute a waiver of state immunity only if it has as a matter of fact been authorised by the head or acting head of mission. Reliance was placed on Republic of Yemen v Aziz [2005] ICR 1391.

The result was that on 30 November and 2 December 2021 an open preliminary hearing was held before Employment Judge Brown sitting at Central London. This was to determine three issues:

Whether the Embassy had submitted to the jurisdiction by the Howard Kennedy email of 9 April 2019 and/or by steps in the proceedings taken after that (the waiver issue);

Whether the Embassy had the benefit of state immunity in relation to Ms Alhayali’s EU law-derived employment claims as a whole pursuant to s 4 of the State Immunity Act 1978 (the section 4 issue);

If not, whether it had the benefit of state immunity in relation to the claim for compensation for psychiatric injury pursuant to s 5 of the 1978 Act (the section 5 issue);

By a reserved judgment promulgated on 7 January 2022, EJ Brown found in the Claimant’s favour on all three preliminary issues and gave directions for a hearing on liability. The Embassy gave notice of appeal to the Employment Appeal Tribunal (“EAT”) on all three issues. EJ Brown stayed the liability hearing while that appeal and any further appeals on the preliminary issues were pending and accordingly no liability hearing has yet taken place.

On the paper sift in the EAT, a deputy judge directed that the appeal had no real prospect of success and that no further action should be taken on it. The Embassy applied for a Rule 3(10) hearing which came before the President, Eady J. She allowed the appeal to proceed to a full hearing on five grounds. These were:

The employment tribunal (“ET”) erred in law in failing to give due weight to the official stamped statement from the Embassy that no authority had been given to Howard Kennedy LLP to waive state immunity in this matter, and as a result the ET should not have found that there had been a waiver of state immunity.

Having regard to Benkharbouche v Embassy of Sudan [2017] ICR 1327 and to the State Immunity Act 1978 (Remedial) Order 2023 (“the Remedial Order”) which came into effect on 23 February 2023, the ET should have considered whether the functions performed by the Claimant fell within the sphere of sovereign activity, not (as the ET incorrectly considered) whether her role fell into the middle category of embassy employees (technical and ancillary) identified by Lord Sumption, a matter that was not in dispute.

In applying Benkharbouche (and having regard to the Remedial Order), the ET failed properly to consider the context in which the Claimant carried out her functions.

In finding that the Claimant was entitled to rely on the personal injury exception to immunity in section 5 of the SIA, and in placing reliance on Federal Republic of Nigeria v Ogbonna [2012] 1 WLR 139 (EAT), the ET took an overly literal approach to statutory construction and the interplay between sections 4, 5 and 16 of the SIA rather than a broader construction that took into account international law.

Alternatively, Ogbonna was wrongly decided and the ET erred by relying on it, because the EAT in that case was not referred to additional authorities and legal materials which support a construction of section 5 of the SIA that limits the exception to state immunity to physical or bodily injury rather than psychiatric injury.

The full hearing of the appeal came before Bourne J on 4 and 5 October 2023. By a reserved judgment handed down on 5 December 2023 he held that:

The ET had erred in finding that the Embassy had submitted to the jurisdiction. However, that issue was remitted to a freshly constituted ET for redetermination (Ground 1, the waiver issue);

The ET had also erred in rejecting the Embassy’s claim to state immunity from the employment claims as a whole (Grounds 2 and 3, the section 4 issue);

However, the ET had been right to reject the claim to state immunity in respect of Ms Alhayali’s claim for psychiatric injury. Bourne J followed the previous decision of the EAT in Ogbonna (Grounds 4 and 5, the section 5 issue).

On 14 February 2024, Bourne J granted Ms Alhayali permission to appeal to this court on the waiver and section 4 issues and granted the Embassy permission to appeal on the section 5 issue.

I will deal first with the s 4 and s 5 issues. In the section of her judgment headed “Findings of fact – Claimant’s job functions”, EJ Brown wrote:

I accepted the Claimant’s evidence regarding her job responsibilities and found that that between January 2013 and 30 July 2015 she worked as an Academic Adviser in the Respondent’s Academic Department, handling requests from Saudi students studying in the UK. She had access to a computer system called Safeer. Students would make requests, for example, for financial guarantee letters or travel tickets, through the system. The Claimant would consider the requests made through the Safeer system and check that the student had supplied the necessary supporting documentation. If the documentation was complete, the Claimant would forward the request and documentation to her head of department.

During this period, the Claimant also received academic reports on students from their universities and uploaded these to the Safeer system. If a student was not obtaining good grades or had failed part of their course, the Claimant would report this to the Head of Department. The Claimant had access to the academic information in relation to students on Safeer, including their contact details and students’ courses and universities.

From 30 July 2015 to September 2017 the Claimant worked in the Respondent’s Cultural Affairs department. She no longer had access to the Safeer computer system, but worked on cultural projects which Saudi students at UK universities wanted to set up.

Students would make a request for funding and support (financial and otherwise) for their project to Dr Bin Ghali, Head of the Cultural Affairs Department. The Claimant would write a report for Dr Bin Ghali which summarised the project and outlined its requirements. The Cultural Attaché, who would then decide whether to support the project and offer funding. If a project was approved, the Claimant would ask various UK universities whether they would host the event and send out notifications to Saudi students about it. The Claimant also assisted with the practical arrangements for setting up and hosting these events.

Between 30 July 2015 to September 2017 the Claimant proofread articles submitted to the Al-Thaqafia magazine (a cultural journal), which the Embassy released every three months. Dr Bin Ghali, the Head of the Department, would decide which articles would be included in the magazine. The Claimant would then send the selected articles for publication.

The Claimant was copied into emails sent to Dr Bin Ghali which were directly relevant to her own work. When Mr Bin Ghali wrote to the Cultural Attaché, he did not copy the Claimant into that correspondence.

The Claimant was given little or no work from March 2017 until she was transferred to the Respondent’s Ticketing Department on 18 September 2017. The Ticketing Department arranged student travel through the Safeer system. The Claimant never worked in the Ticketing Department there because she was absent from work throughout the relevant period by reason of sick leave and annual leave.

The Claimant was not in a leadership or management role at any time during her employment at the Respondent. She had no ultimate decision making capacity in any of the roles she undertook.

Her roles involved providing information to her Heads of Department for them to make decisions. Her role in the Cultural Department also encompassed helping with practical arrangements for holding student events. She also attended these events and spoke with other attendees.”

There was a good deal of argument before us about the distinction between findings of fact and evaluative decisions and the differing approaches of appellate courts to each of them, both generally and in the field of state immunity. However, what is beyond dispute, as Bourne J accepted at paragraph [89] of his judgment, is that findings of primary fact by the ET cannot be disturbed on appeal. These include findings as to what happened and what the Claimant’s job actually involved. It is not suggested that this is a case where the findings of fact were perverse in the sense that there was no evidence at all to support them.

State Immunity Act 1978

At the time of the facts giving rise to the claim and of the ET decision, the State Immunity Act 1978 had not yet been amended by the Remedial Order. Counsel were agreed, however, that the amendments make no difference to the law to be applied in this case. I therefore set out the relevant provisions of the 1978 Act as they stood before amendment by the Remedial Order: