The Government of the State of Kuwait v S Mohamed

An Employment Appeal Tribunal should normally follow a prior EAT decision on the same point of law. The convention applies in state-immunity cases. It may be displaced only where the earlier decision was per incuriam, manifestly wrong, inconsistent with relevant authority, or affected by other exceptional circumstances.

Obiter dicta of a Court of Appeal judge do not bind the EAT or displace an earlier EAT ratio. Applying that approach, the EAT followed three prior EAT decisions that State Immunity Act 1978, section 5 removes immunity from employment-related proceedings in respect of personal injury. Psychiatric injury is personal injury for section 5 purposes under the binding Court of Appeal decision in Shehabi.

The respondent, a doctor employed at Kuwait’s London diplomatic mission, brought Equality Act claims arising from his dismissal. He sought compensation for depression and other psychiatric loss.

The Employment Tribunal held that his work involved the exercise of sovereign authority. The employment exception in section 4 of the State Immunity Act 1978 was therefore excluded by section 16. It nevertheless held, following Ogbonna, that section 5 permitted the personal-injury elements of his discrimination and harassment claims to proceed. The Tribunal later upheld claims in part and awarded compensation.

Kuwait appealed, contending that section 5 does not apply to employment-related claims otherwise protected by state immunity and, alternatively, that psychiatric injury falls outside section 5.

1. Appeal dismissed. The EAT was not bound by Bean LJ’s observations on section 5 in Alhayali, because they were expressly obiter. Those observations were entitled to respect but did not override EAT decisions whose rulings formed part of their ratio decidendi.

2. The convention in British Gas Trading v Lock applied. It is a substantive precedent-related principle, not an ordinary procedural rule displaced by the special duty under section 1(2) of the State Immunity Act 1978 to give effect to immunity. State immunity did not itself constitute an exceptional circumstance permitting departure from prior EAT authority.

3. The earlier EAT decisions in Caramba-Coker, Ogbonna and the EAT decision in Alhayali were not per incuriam. Nor were they manifestly wrong. The statutory and international-law arguments were detailed and finely balanced. The court was therefore required to follow those decisions, under which section 5 applies to proceedings in respect of personal injury caused by discrimination or harassment in employment, even where section 16 would otherwise preserve immunity.

4. The judge stated, obiter, that he preferred Bean LJ’s contrary construction. That personal view did not permit departure from the prior EAT decisions. Ground 1 was dismissed.

5. On Ground 2, the EAT was bound by Shehabi v Bahrain, which held that psychiatric injury is personal injury within section 5. The pending Supreme Court appeal did not alter that binding effect. Ground 2 was dismissed.

• Employment Appeal Tribunal: Appeal dismissed: [2026] EAT 20.
• Employment Tribunal: At the preliminary hearing, Employment Judge Brown held that section 5 of the State Immunity Act 1978 allowed the personal-injury claims to proceed despite section 16. At liability and remedies hearings, the Tribunal upheld claims in part and awarded £332,590.76 compensation.