A Muda v Malaysia

For state-immunity purposes, an administrative or technical employee of a diplomatic mission is not employed in the exercise of sovereign authority merely because the work supports, or is public-facing in relation to, the mission’s functions. The decisive question is whether the employee’s functions are sufficiently close to governmental functions and call for personal involvement in the diplomatic or political operations of the mission.

The juridical character of the particular conduct challenged must also be identified. A claim for remuneration allegedly promised under an earlier appointment is private in character where it does not challenge the State’s pay scales, recruitment policy, or future choice of staff. A claim for past compensation does not intrude upon the State’s freedom to appoint mission staff in the way that reinstatement would.

The claimant, a Malaysian national with indefinite leave to remain in the United Kingdom, worked at Malaysia’s High Commission in London. Her claim for unlawful deduction from wages alleged that she had performed the role of social secretary since 2014 but had not received the pay attached to that role.

The Employment Tribunal dismissed the claim under State Immunity Act 1978, section 4(2)(a), but rejected two further immunity grounds under section 16(1)(aa). It found that the claimant’s social-secretary work was not an exercise of sovereign authority and that her pay claim did not concern conduct engaging such authority.

The claimant’s appeal against the section 4(2)(a) ruling was stayed following the Court of Appeal’s declaration of incompatibility in Spain v Lorenzo [2025] EWCA Civ 59. The respondent’s cross-appeal proceeded only on the two section 16 grounds. The central issues were whether the claimant’s employment, or the conduct complained of, engaged Malaysia’s sovereign authority.

1. The cross-appeal was dismissed on both grounds. The Employment Tribunal made detailed, unchallenged findings of primary fact. Its conclusion on state immunity was an evaluative judgment. The EAT could interfere only for an error of law, not because it might have assessed the facts differently.

2. Under section 16(1)(aa)(i) of the State Immunity Act 1978, the relevant question was whether the claimant’s functions were sufficiently close to the governmental functions of the mission to amount to an exercise of sovereign authority. The Tribunal correctly applied the approach in Benkharbouche [2017] UKSC 62, endorsed in Costantine [2025] UKSC 9 and Alhayali [2025] EWCA Civ 1162.

   The claimant followed instructions, arranged events and travel, sent invitations, ushered guests, and performed practical and clerical tasks. She had no decision-making role, no access to official files or governmental communications, and no personal involvement in diplomatic or political operations. Her use of her own contact details in formal correspondence did not alter the permissibility of the Tribunal’s conclusion that her duties were merely ancillary and collateral.

3. Under section 16(1)(aa)(ii), the Tribunal properly considered the true subject matter and juridical character of the claim. It did not treat its contractual form as determinative. A challenge to nationally set mission pay grades might engage sovereign authority, but this claim concerned an alleged 2014 agreement to pay the claimant at the grade of a role she said she had already been appointed to perform. That was a private or commercial matter.

4. The claim neither sought appointment nor challenged a recruitment policy. Determining what had occurred in 2014 and, if appropriate, awarding arrears would not require the mission to employ or appoint anyone in the future. It therefore did not intrude upon the State’s freedom to appoint mission staff, unlike reinstatement.

5. The claimant’s appeal remained stayed pending the Government’s response to the incompatibility concerning section 4(2)(a).

• Employment Appeal Tribunal: The respondent’s cross-appeal against the Employment Tribunal’s rejection of immunity under section 16(1)(aa)(i) and (ii) of the State Immunity Act 1978 was dismissed. The claimant’s appeal concerning section 4(2)(a) remained stayed.
• Employment Tribunal, Central London: By a judgment promulgated on 23 July 2024, the Tribunal dismissed the claimant’s claim under section 4(2)(a), but rejected the respondent’s additional immunity grounds under section 16(1)(aa)(i) and (ii).