The Kingdom of Spain v L Lorenzo

Diplomatic immunity under Article 31 of the Vienna Convention on Diplomatic Relations 1961 attaches to the diplomatic agent. It cannot be invoked by the sending State when it is sued in its own right.

For State immunity in an employment claim, the tribunal must consider the whole context. The employee’s functions will usually be important, but particular alleged treatment may itself engage sovereign interests. Immunity applies only where the claim arises from an inherently sovereign or governmental act, rather than an act of private-law character.

Where the conduct is non-sovereign, section 4(2)(a) of the State Immunity Act 1978 lacks a binding customary-international-law basis for an absolute bar to a claim by a dual national. It must be disapplied for an EU-law claim under Article 47 of the Charter.

The claimant, a dual British and Spanish national, worked at the Spanish Embassy in London. Her roles included social secretary, administrative assistant and, latterly, protocol-related duties. She brought claims of direct race discrimination and race-related harassment under the Equality Act 2010.

The Employment Tribunal held that the diplomatic immunity of an individual diplomat did not bar claims against the Kingdom of Spain. It also held that the alleged conduct was not sovereign in character and disapplied section 4(2)(a) of the State Immunity Act 1978. It dismissed the claimant’s purely domestic employment-rights claims.

The Kingdom appealed on diplomatic immunity, State immunity, perversity, and disapplication of section 4(2)(a). The central questions were whether the State could invoke an agent’s diplomatic immunity and whether the discrimination claims arose from sovereign acts.

1. The appeal was dismissed in substance. Ground 4 succeeded as a matter of principle, because the Tribunal should have considered the pleaded discriminatory acts as well as the claimant’s employment functions. That error was immaterial: on the pleaded case and evidence, those acts were not inherently sovereign or governmental. The Tribunal’s result therefore stood.

2. Article 31 of the Vienna Convention on Diplomatic Relations 1961, given domestic effect by the Diplomatic Privileges Act 1964, confers immunity on a “diplomatic agent”. Its language distinguishes that agent from the sending State. The State could not invoke Article 31 on its own behalf merely because the impugned acts were attributable to a diplomat acting for it. The separate regimes of diplomatic and State immunity overlap but are not co-extensive.

3. Applying Benkharbouche and The I Congreso del Partido, State immunity depends on the whole context and on the juridical character of the relevant acts. In most employment cases, that will depend on the employee’s functions. Administrative and technical staff may perform functions sufficiently close to the mission’s governmental functions to engage sovereign authority. However, the character of the employment is not invariably decisive. Particular treatment of an employee may engage sovereign interests even where the contract itself does not.

4. The claimant’s alleged discriminatory and harassing treatment was not inevitably sovereign in character. There was no evidential basis requiring that conclusion. The Tribunal’s conclusion that the claim did not arise from a sovereign act was not perverse under the stringent appellate test.

5. Once the relevant acts were non-sovereign, the rationale in Benkharbouche for disapplying section 4(2)(b) applied equally to section 4(2)(a) of the State Immunity Act 1978. No binding rule of customary international law justified immunity for such private-law acts merely because the claimant was also a national of the foreign State. Section 4(2)(a) had to be disapplied in favour of Article 47 of the Charter. The later State Immunity Act 1978 (Remedial) Order 2023 did not alter that conclusion.

• Employment Appeal Tribunal: appeal dismissed in substance; the Employment Tribunal’s judgment stood.
• London Central Employment Tribunal: judgment sent to the parties on 16 June 2021. The Tribunal allowed the claimant’s Equality Act race-discrimination and harassment claims to proceed, but dismissed her purely domestic employment-rights claims on State-immunity grounds.