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

For employment claims by staff of a diplomatic mission, state immunity depends on whether the employee’s functions are sufficiently close to the mission’s sovereign functions. Technical and administrative work is not immune merely because it supports governmental activity. The question is an evaluative assessment for the employment tribunal, based on the findings and the whole context. Low-level practical, clerical and supportive duties, without important decision-making or close involvement in governmental communications, may fall outside immunity. The court also expressed the view, obiter, that the personal-injury exception in section 5 of the State Immunity Act 1978 includes standalone psychiatric injury but does not allow an employment discrimination claim to evade the statutory scheme in sections 4 and 16.

Ms Abir Alhayali was employed by the Royal Embassy of Saudi Arabia Cultural Bureau in London. After withdrawing her domestic-law claims, she pursued employment claims derived from European Union law. The Embassy relied on state immunity.

The employment tribunal held that the Embassy had waived immunity and was not immune under sections 4 or 5 of the State Immunity Act 1978. Bourne J in the Employment Appeal Tribunal held that the tribunal had erred on waiver and section 4, remitting waiver for reconsideration, but had correctly rejected immunity for the psychiatric-injury claim.

Ms Alhayali appealed on waiver and section 4. The Embassy appealed on section 5. The central questions concerned the correct test for sovereign immunity in an embassy employment claim, the appellate role in reviewing that assessment, the scope of the personal-injury exception, and the effect of solicitors’ conduct on waiver.

1. Disposition. Ms Alhayali’s appeal was allowed. The decision of Bourne J was set aside and the employment tribunal’s order was restored. There was no remittal on section 4 because the tribunal had applied the correct test to its findings of fact.
2. Section 4. The relevant question was whether the employee’s functions were sufficiently close to the exercise of sovereign authority. Technical and administrative duties do not attract immunity merely because they are ancillary or supportive of governmental functions. The assessment requires attention to the employee’s actual functions and the whole context. The tribunal correctly treated the claimant’s work as relatively low-level, practical and supportive. She had no leadership or ultimate decision-making role and was not involved in confidential governmental communications. Her duties were therefore not sufficiently close to sovereign activity. The Embassy was not immune from the EU-derived employment claims under the State Immunity Act 1978, applying the guidance in Benkharbouche v Embassy of the Republic of Sudan; Janah v Libya [2017] UKSC 62.
3. Appellate review. Primary findings of fact by the employment tribunal cannot be disturbed on appeal unless they are perverse. Whether a technical or administrative employee falls on the sovereign side of the line is an evaluative judgment for the fact-finder. It is not an automatically appealable question of law permitting substitution of the appellate court’s assessment. The court agreed with Webster v USA [2022] EAT 92 on this point.
4. Section 5. The court considered the section 5 issue unnecessary to the outcome but expressed its view. Following Shehabi v Kingdom of Bahrain [2024] EWCA Civ 1158, standalone psychiatric injury falls within personal injury. However, the court considered that Federal Republic of Nigeria v Ogbonna [2012] 1 WLR 139 was wrong to treat sections 4 and 5 as separate routes allowing an employment discrimination claim to escape the scheme in sections 4 and 16. Section 5 is linked to the cause of action, not merely the nature of the damage.
5. Waiver. The waiver issue became academic. The court nevertheless expressed concerns about Republic of Yemen v Aziz [2005] EWCA Civ 745. Coulson LJ added that deemed submission under section 2(3) involves an objective analysis of whether the state took a step in the proceedings, rather than an inquiry into actual authority or intention. The court left the point for reconsideration in an appropriate case.

• Court of Appeal (Civil Division). Ms Alhayali’s appeal was allowed. The EAT decision was set aside and the employment tribunal’s order restored: [2025] EWCA Civ 1162.
• Employment Appeal Tribunal. Bourne J held that the employment tribunal had erred on waiver and section 4, remitting waiver for reconsideration, but upheld its rejection of immunity for the psychiatric-injury claim.
• Employment Tribunal. Employment Judge Brown held that the Embassy had submitted to the jurisdiction and was not immune under sections 4 or 5 of the State Immunity Act 1978.