The Royal Embassy of Saudi Arabia (Cultural Bureau) v A Alhayali

For state immunity in employment claims, the decisive question is whether the employee’s functions were sufficiently close to the foreign state’s exercise of sovereign authority. It is insufficient to ask simply whether the work was ancillary or supportive. On fixed findings of fact, that classification has one correct legal answer.

An official but unsigned embassy statement about authority to waive immunity is not conclusive or entitled to special status. However, a tribunal must give it some perceptible evidential weight where it directly bears on the inference to be drawn.

Under State Immunity Act 1978, section 5 is a freestanding exception. It is not restricted by section 16(1)(a), and personal injury includes psychiatric injury.

The claimant was employed by the Saudi Embassy’s Cultural Bureau in academic and cultural affairs. Her EU-law-derived employment claims included psychiatric injury. Although the Bureau’s former solicitors accepted Employment Tribunal jurisdiction over those claims in April 2019, it later reasserted state immunity.

The Employment Tribunal held that there had been an authorised submission to jurisdiction. It also held that the claimant’s work was not an exercise of sovereign authority and that, in any event, section 5 of the State Immunity Act 1978 removed immunity for her psychiatric-injury claim. The Bureau appealed.

The principal issues were the evidential weight of the Embassy’s unsigned statement denying authority to waive immunity, the correct test for sovereign activity, and whether section 5 covers psychiatric injury in an embassy-employment claim.

1. Appeal allowed in part. The Tribunal erred by giving no, or no perceptible, weight to the Embassy’s official unsigned statement that neither the Ambassador nor his deputy had authorised a waiver. The statement was neither conclusive nor inherently entitled to special status. Yet it directly contradicted the inference that authority came from the Ambassador or deputy, and had to be weighed. The waiver issue might require remittal to a differently constituted tribunal.

2. The Tribunal also applied an imprecise legal test on sovereign immunity. Following Benkharbouche, the question for technical and administrative embassy staff is whether their ancillary and supportive functions were sufficiently close to the mission’s sovereign functions. It is not whether they were merely ancillary and supportive.

3. The Academic and Cultural Affairs departments exercised sovereign authority by protecting the interests of Saudi nationals in the United Kingdom and promoting Saudi culture. On the Tribunal’s unchallenged findings, the claimant sifted guarantee requests, reported on funding applications and participated in cultural events. Those functions formed part of the Embassy’s public service rather than its private administration. The only correct legal conclusion was that they were sufficiently close to sovereign activity. This issue was therefore not remitted.

4. Grounds challenging the psychiatric-injury exception failed. Sections 4 and 5 of the State Immunity Act 1978 are separate, freestanding exceptions to the general immunity in section 1. Section 16(1)(a) qualifies section 4, but does not restrict section 5. There was no international-law consensus capable of altering that clear construction. Following Ogbonna, personal injury in section 5 includes psychiatric injury as well as physical injury.

• Employment Appeal Tribunal: Allowed the Bureau’s appeal on the evidential-weight and sovereign-activity issues, but dismissed its challenges to the application of section 5 of the State Immunity Act 1978.
• Employment Tribunal: By a judgment dated 7 January 2022, held that the Bureau had submitted to jurisdiction, that the claimant’s work was not sovereign activity, and that section 5 disapplied immunity for psychiatric injury.