In The Royal Embassy of Saudi Arabia (Cultural Bureau) v Ms A Alhayali the Employment Appeal Tribunal (EAT) considered the situations in which embassies and other diplomatic missions can claim state immunity from employment-related claims.  

The EAT applied the recent Supreme Court case of Benkharbouche v Embassy of Sudan which had resulted in an amendment to the State Immunity Act 1978 (SIA 1978) to conclude that if an employee’s work is “sufficiently close” to the exercise of sovereign authority, the embassy or diplomatic mission would be able to claim immunity from employment-related claims under the SIA1978.

Whether an employment is “sufficiently close” to the exercise of sovereign authority is fact dependent. In this case, the claimant worked in the Saudi Arabian Embassy (the Embassy)’s Academic and Cultural Affairs departments. The EAT held that her role met the “sufficiently close” test – because “by sifting compliant and non-compliant guarantee requests, writing reports on funding requests and discussing art exhibits … 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”. Therefore, she participated in the public service of the Embassy, rather than only its private administration. Justice Bourne highlighted that this case was borderline, and that had the claimant had a more administrative role, such as being a member of cleaning staff, the Embassy would not have had immunity.

However, foreign states are not immune to claims for death or personal injury or loss of tangible property caused by an act or omission in the UK. The EAT held that this extends to psychiatric injury, and that therefore the Embassy was not immune from the Claimant’s claim that their discriminatory treatment had led to her suffering psychiatric injury.

Embassies and other diplomatic missions should bear in mind the limits to state immunity. Although it can be claimed in relation to certain disputes, it is likely limited to those disputes where the relevant state entered into the employment contract as an exercise of sovereign authority, or where the conduct complained of was conducted by the state in exercise of sovereign authority. It is not, therefore, a panacea for all employment claims, and will not apply at all to claims for psychological or physical injuries.