The Court of Appeal (CoA) reinforced a nuanced approach to state immunity, moving away from a rigid, "one-size-fits-all" application and towards a more careful analysis of the nuanced employment role.
Facts:
Ms Abir Alhayali, a former employee of the Royal Embassy of Saudi Arabia Cultural Bureau in London, lodged a claim via Tribunal for unfair dismissal and discrimination after her employment ended in January 2018. The Embassy initially asserted state immunity, but its solicitors later confirmed by email that the Tribunal had jurisdiction over claims derived from EU law, leading Ms Alhayali to drop her other domestic law claims.
The case proceeded for more than two years with the Embassy’s involvement. However, in August 2021, the Embassy unexpectedly reasserted state immunity, arguing that the initial waiver was not authorised by the head of the mission.
The Tribunal, however, found in Ms Alhayali's favour on all points. The Embassy appealed, and the Employment Appeal Tribunal held that the original Tribunal had erred in its rulings on the waiver and over immunity for EU claims, although it was correct on the psychiatric injury claim.
Decision:
The CoA found in favour of Ms Alhayali, setting aside the decision of the second Tribunal and restoring the original judgement of the Tribunal. The Court ruled that the Embassy was not entitled to state immunity in this case. It agreed with the original Tribunal that Ms Alhayali's job functions were purely "ancillary and supportive" and "insufficiently close" to the sovereign or governmental activities of the Embassy to attract immunity. The Court found that the Judge had been wrong to re-evaluate the facts and overturn the original decision. Although not essential to the outcome, the Court confirmed that a claim for psychiatric injury falls under the "personal injury" exception to state immunity. This confirmed the precedent set in a previous case, ensuring that a state cannot claim immunity from causing such harm in the UK.
The Judge also offered a significant commentary, although not decisive, on waiver of immunity. While not overturning the precedent, the Judge’s pointed remarks indicate that this issue of ostensible authority and waiver of state immunity should be reconsidered in a future case.
Implications:
This ruling is a clear victory for employees of embassies, cultural bureaus, and other state-affiliated entities in the UK. It reinforces the principle that state immunity is not an automatic shield for employment disputes. The Court's judgement provides a clear pathway for administrative and technical staff to bring claims against their diplomatic employers.
The key takeaway is that an employee's specific job functions are more important than the overall purpose of the Embassy or cultural bureau. If a role is found to be "ancillary and supportive," as Ms Alhayali's was, it does not fall within the narrow exception for sovereign immunity. Embassies and cultural bureaus must be prepared to demonstrate in court that an employee's role is "sufficiently close" to core governmental or sovereign functions. Simply being an employee of an embassy is not sufficient to grant immunity from UK employment law.
If a foreign state intends to claim immunity, it must do so immediately and not take any steps in the proceedings. Any active participation, such as filing defences or attending hearings, could be taken as evidence that it has waived its right to immunity.
