The Royal Embassy of Saudi Arabia v Costantine

A court, including an appellate court, must consider of its own motion whether an absent foreign State is entitled to State immunity. Procedural default does not ordinarily displace that jurisdictional duty.

Employment of administrative or technical embassy staff attracts immunity only where the employment functions are sufficiently close to the mission’s governmental functions, or the conduct complained of was an exercise of sovereign authority. Ancillary administrative work, access to personal information and dismissal do not alone satisfy that test. A damages claim does not control whom the mission employs, although reinstatement may intrude upon sovereign interests.

A former administrative employee of the Saudi Arabian Embassy brought claims for religious discrimination and harassment. The Employment Tribunal held that her data-entry, secretarial and event-related duties were not sufficiently close to the Embassy’s governmental functions to attract State immunity.

The Employment Appeal Tribunal rejected the Embassy’s appeal. The Court of Appeal subsequently dismissed its appeal for non-appearance: [2024] EWCA Civ 332. The Supreme Court considered whether an appellate court must address immunity despite the State’s absence, whether the Employment Tribunal applied the correct test, and how the State Immunity Act 1978 (Remedial) Order 2023 affected that test.

1. Disposition. The appeal was dismissed unanimously. The Court of Appeal erred by dismissing the Embassy’s appeal for non-appearance without considering State immunity. Had it performed that duty, however, it would necessarily have concluded that the Embassy was not immune.
2. Duty to address immunity. Section 1(2) of the State Immunity Act 1978 requires every court or tribunal, including an appellate court, to give effect to State immunity even where the State does not appear. Immunity limits domestic jurisdiction and reflects the sovereign equality of States. The court must therefore inform itself about the defendant’s status and the nature of the proceedings. The obligation can override ordinary procedural rules. The Court of Appeal had the immunity issue, the grounds of appeal and the Embassy’s skeleton argument before it. It should have decided the issue as best it could, granting an adjournment or obtaining assistance from an advocate to the court if necessary.
3. Employment-immunity test. The principles in Benkharbouche v Embassy of the Republic of Sudan [2017] UKSC 62 and amended section 16(1)(aa) were to the same effect. First, the court asks whether the State entered the employment contract in the exercise of sovereign authority. This depends on the employment relationship and the employee’s functions. Administrative and technical work may qualify where it is sufficiently close to the mission’s governmental functions. Secondly, immunity may arise where the particular conduct complained of was itself an exercise of sovereign authority, even though the employment relationship was not.
4. Application to the employee’s functions. The Employment Tribunal directed itself correctly and made findings it was entitled to make. The employee performed routine data entry, basic secretarial work and limited event organisation. She neither participated in governmental decision-making nor accessed confidential government material. Her possible technical access to information and limited access to personal details did not establish the necessary proximity to governmental functions.
5. Conduct complained of. The discrimination and harassment claims sought compensation and a declaration, not reinstatement. No evidence connected the employee’s treatment or dismissal with State security, recruitment policy or another sovereign interest. Treating every dismissal of administrative mission staff as sovereign would extend immunity too far.

1. United Kingdom Supreme Court: The appeal was dismissed. The Court of Appeal had erred in failing to examine immunity, but the Embassy was not entitled to immunity: [2025] UKSC 9.
2. Court of Appeal: The Embassy’s appeal was dismissed for intentional non-appearance: [2024] EWCA Civ 332.
3. Employment Appeal Tribunal: The appeal was rejected on the sift under rule 3(7), and the subsequent rule 3(10) application was dismissed.
4. Employment Tribunal: The Tribunal held at a preliminary hearing that the employee’s work was not an exercise of sovereign authority and that State immunity did not apply.