The Kingdom of Spain v L Lorenzo

In this judgment I refer to the parties by their respective statuses below.

This is the respondent’s appeal from the judgment of the London Central Employment Tribunal, (Employment Judge Segal KC, sitting alone — ‘the Tribunal’), sent to the parties on 16 June 2021. That judgment followed an open preliminary hearing at which the claimant represented herself and the respondent was represented, as it was before me, by Mr Jonathan Davies. On appeal, the claimant was represented by Mr Matthew Jackson.

The issues for determination by the Tribunal had been identified in an earlier case management summary as being whether the claims should be struck out because they were barred by diplomatic immunity, pursuant to Article 31 of the Vienna Convention on Diplomatic Relations 1961 (‘the Vienna Convention’); alternatively, State immunity, pursuant to section 1 of the State Immunity Act 1978 (‘the SIA’), on the basis that the claims and/or the acts of which the claimant complained arose out of an inherently sovereign or governmental act of the Kingdom of Spain. Each issue was sub-divided into a number of elements. The Tribunal held that: (1) the claimant’s claims deriving from the Employment Rights Act 1996 and the Employment Act 2002 would be dismissed; (2) her claims of direct race discrimination, contrary to sections 13 and 39 of the Equality Act 2010 (‘the EqA’), and harassment related to race, contrary to sections 26 and 39 of the EqA (in each case reliant upon her British nationality) would proceed to a substantive hearing; and (3) the correct respondent to those claims was ‘The Kingdom of Spain’, rather than, as had been pleaded by the claimant, the ‘Embassy of Spain’.

The Tribunal received written and oral evidence from the claimant and from the then current Canciller (Ambassador) at the Spanish Embassy, in London. It observed that the facts had been largely agreed and/or matters of documentary record. It noted ([15] and [16]) that the claimant had been recruited to work in the Spanish Embassy in about January 2008, whilst she had been living in London. She had had dual nationality (British and Spanish) and a Spanish passport. Initially, she had worked as the Ambassador’s social secretary, in which capacity she had worked, mainly from his official residence, next door to the embassy. She had sometimes seen confidential documents, for the purposes of copying them et cetera. After what had been described to the Tribunal as a career break, she had returned to work in 2013, in a more junior capacity, as Administrative Assistant, being one of approximately 42 staff then working at the embassy. In that capacity, she had had sight of confidential documents and, in particular, in so far as she had placed or listed documents in the ‘diplomatic bag’, they had almost always been in sealed envelopes. At some point, towards the end of her employment with the respondent, the claimant had acted up, in the capacity of Protocol Officer, a role described to the Tribunal as having been a quasi-civil servant role, entailing liaison with the Foreign and Commonwealth Office (as it was known until September 2020) regarding arrivals and departures of staff; and issues concerning duty-free goods, diplomatic cars etc, in that context. At paragraphs 17 to 19 of its Reasons, the Tribunal recorded:

In summary, so far as material to this appeal the Tribunal concluded that:

The issues to be determined on appeal went through a number of iterations as the hearing progressed. In their final form, they were agreed by the parties as set out below. Of the six pleaded grounds of appeal, only five were pursued, ground one having been abandoned by the respondent:

Mr Davies submitted that a diplomatic mission was an emanation of the sending State. The implication, in the Tribunal’s judgment, that diplomatic immunity aligned with personal and/or primary responsibility, and that State immunity aligned with corporate, or secondary or vicarious, liability was wrong. The Tribunal’s reliance upon the constructive liability provisions of the EqA to support that approach had been ‘effectively a castle built on sand’. The State should be able to rely upon diplomatic immunity and, internationally, at least, that argument was ‘not entirely novel’ (see Kramer Italo Limited v Government of Kingdom of Belgium; Embassy of Belgium 103 LR 299, at 310, Nigeria Court of Appeal, 1 November 1988). Diplomatic immunity was ‘effectively the property of the sending State and not of those individuals the State sends in that capacity’: Re P (Children Act: Diplomatic Immunity) [1998] 1 FLR 624, at 627, referring to an unreported decision of Laws J in Propend Finance v Sing 17 April 1997.Benkharbouche had not resolved that point and Reyes v Al-Malki [2017] UKSC 61 (determined by the same constitution of the Supreme Court and handed down on the same day) had reaffirmed the co-existence of both pleas. In Benkharbouche, the Supreme Court had not considered the first limb of section 16(1) of the SIA, which, in effect, gave precedence to diplomatic immunity and would serve no purpose were the State unable to rely upon it.

The Tribunal’s conclusion that, in an employment claim brought against it, a diplomatic mission could not raise a plea of diplomatic immunity was surprising. The effect of the Tribunal’s judgment was to render otiose diplomatic immunity in any claim (whether or not an employment case) in which the act impugned was done on behalf of the sending State since, following the logic of the judgment, in any case where the diplomat was acting on behalf of the State, the State was his employer and, as such, vicariously liable: the claim was, therefore, against the State and the rules of State immunity applied, which, depending upon the extent and ambit of the Benkharbouche exception, in the case of employment or the other exceptions in the SIA, might not offer any immunity at all. That approach would not give effect to the clear and obvious intention of the Vienna Convention, most of the rules in which related to acts carried out by a diplomat on behalf of the sending State, or the materials and caselaw which confirmed that the introduction of State immunity did not operate in any way to limit diplomatic immunity.

Claims for discrimination and harassment deriving from sections 109 and 110 of the EqA had to be brought, respectively, under sections 39 and 40 of that Act, which enable an employee to sue her employer, but not her employer’s employer. Here, the Claimant’s employer had been the Ambassador, and it had not been open to her to sue his employer, or that of the putative discriminating employee. In any event, the application of diplomatic and State immunity was a matter of international law and it would be strange if it could be determined by reference to national statutory rules the primary purpose of which did not engage that issue.

On behalf of the claimant, Mr Jackson submitted that the Vienna Convention was irrelevant to the claims brought under the EqA (whether advanced, formally, against the Embassy or the Kingdom of Spain). The respondent's argument in respect of diplomatic immunity under the Vienna Convention was based upon a false legal premise. As a matter of law, it would not be held vicariously liable for the tortious actions of another person, were the claimant to succeed in her claims under the EqA; it would have primary liability for those actions, which Parliament had deemed to be attributable to it. That being clear, there was no basis for the respondent's novel argument that a nation State should benefit from the diplomatic immunity of an individual. There was no reason to suppose that the Diplomatic Privileges Act 1964 (‘the DPA’) constituted anything other than a complete code for the application of the Vienna Convention (the same conclusion reached in Benkharbouche in relation to the SIA), and nothing in domestic law applied vicarious liability, which would not arise on the facts of this case. Before the Tribunal, the respondent had relied upon Article 31 of the Vienna Convention, to which effect was given in domestic law by section 2 of and schedule 1 to the DPA. Whether the correct respondent be the Kingdom of Spain or the Embassy of Spain, neither was a diplomatic agent as defined in Article 1 of the Vienna Convention; rather, to use an English Law term, it was a body corporate or legal person. The fact that the immunity of an individual could not be waived other than by the sending State was irrelevant; the claims in this case had not been advanced against an individual and the Tribunal’s judgment would not affect the position of any such individual, were he to have been a respondent. The Tribunal had been right to characterise the respondent’s argument as novel, when rejecting it. There had been no cited caselaw, or other principle of law, to the effect that the inviolability of an individual meant that an act of that person could not, as a matter of the law of England and Wales, be treated as that of the sending State. The basis for that submission was obscure and the submission ought not be accepted.

I begin by recording that ground one of the appeal (which had challenged the Tribunal’s conclusion that the correct respondent was the Kingdom of Spain) had fallen away following each party’s acceptance that the merit in the arguments advanced in the remaining grounds of appeal did not depend upon the identity of the respondent and that the Embassy was an emanation of the Kingdom, having no separate personality in domestic law.

The starting point for issue one is the DPA, section 1 of which provides that the following provisions of that Act shall, with respect to the matters dealt with therein, have effect in substitution for any previous enactment or rule of law. Section 2(1) provides that, subject to section 3, the Articles of the Vienna Convention set out in Schedule 1 to the DPA shall have the force of law in the United Kingdom and be construed in accordance with the subsequent provisions of section 2. Not all Articles of the Vienna Convention appear in Schedule 1, but included are Articles 1 and 31, which provide (materially):

Those Articles make clear that the immunity conferred by Article 31 is that of the diplomatic agent (as defined by Article 1(e)), who is distinguished from the sending State in Article 31(4).

Whilst issue one relates to diplomatic immunity, it is necessary to have regard to Benkharbouche and I, therefore, summarise the Supreme Court’s explanation of the principles of State immunity in that decision, in which the primary question was whether sections 4(2)(b) and 16(1)(a) of the SIA were incompatible with the requirements of Article 6 ECHR and Article 47 of the Charter. The effect of the former section, as it stood at the time of the Supreme Court’s decision, was that a State was immune as respects proceedings relating to a contract of employment between a State and a person who, at the time of the contract, was neither a national of the United Kingdom nor resident there. The effect of the latter section was that a State was immune as respects proceedings concerning the employment of members of a diplomatic mission, including its administrative, technical and domestic staff. The Supreme Court held that those provisions would be incompatible with each Article, unless justified by the requirements of customary international law. As a matter of such law, a foreign State would be immune from an employment claim which arose out of an inherently sovereign or governmental act, as opposed to an act of a private law character [53]. Sections 4(2)(b) and 16(1)(a) of the SIA were incompatible both with Article 6 of the ECHR [76] and Article 47 of the Charter [78]. The remedy for the former was a declaration of incompatibility. For the latter, the remedy was the disapplication of the relevant provisions of the SIA in relation to claims deriving from EU law, but those provisions remained effective to bar purely domestic claims. Following Benkharbouche, certain amendments were effected to the SIA by the State Immunity Act 1978 (Remedial) Order 2023 (‘the 2023 Order’), with effect from 23 February 2023, applicable to any cause of action arising on or after 18 October 2017. I shall return to the significance of the 2023 Order later in this judgment.

In his judgment, with which all other members of the court concurred, Lord Sumption JSC held as follows [17]:

In Al-Malki v Reyes, the claimant was a Philippine national employed by Mr and Mrs Al-Malki as a domestic servant in their residence in London, at a time when Mr Al-Malki had been a member of the diplomatic staff of the embassy of Saudi Arabia, in London. The main issues on appeal concerned the effect of Article 31(1)(c) of the Vienna Convention in a case (assumed for the purposes of determining the issue) of human trafficking. Those principles are not engaged in this appeal, but certain dicta relating to the legal immunity of diplomatic agents remain pertinent. At paragraph 6, Lord Sumption JSC observed:

At paragraph 26ff, Lord Sumption JSC considered the similarities and differences between State and diplomatic immunity, holding ([27] and [28]):

Having regard to the above dicta, I am satisfied that the approach urged on behalf of the respondent in this case is incorrect. First, it does violence to the language of Article 31 of the Vienna Convention, which is clearly and exclusively directed towards the immunity of the diplomatic agent, rather than of the sending State. Secondly, it urges impermissible regard to whether, on the facts of this case, recognition of the respondent’s immunity would, or would not, impede the efficient performance of the diplomatic functions of the mission. Thirdly, it fails to recognise that, in some significant respects, the immunities of diplomatic agents are wider than those of the State and the reasons therefor. The fact that the acts of individuals, performed on behalf of the State for whom they act, may also be attributed to the State provides no answer to those points. It is correct, as Mr Davies submitted, that section 16(1) of the SIA provides that the part of that Act in which it is situated ‘does not affect any immunity or privilege conferred by the [DPA] or the Consular Relations Act of 1968’, but that does not assist in determining the nature or extent of the latter and itself serves to indicate that the immunities conferred by the SIA and the DPA are not co-extensive. In my judgement, Mr Davies’ submissions elide the availability of diplomatic immunity, where it applies, with the persons to whom or which it attaches and the nature of the relevant immunity. Thus, Article 31 of the Vienna Convention provides for a diplomatic agent’s immunity from criminal, civil and administrative jurisdiction in the circumstances specified; provides that he is not obliged to give evidence as a witness; and prevents measures of execution being taken against him, other than in the circumstances specified. By contrast (for example), Article 22 renders the premises of the diplomatic mission inviolable, and Article 23 exempts the sending State and the head of the mission from the specified national, regional or municipal taxes in respect of the premises of the mission. It is the Vienna Convention, to the extent given the force of law in the United Kingdom by the DPA, which dictates the immunity conferred and its Articles clearly distinguish between the immunity conferred upon an individual and that conferred upon the State. Article 1 itself clearly and narrowly defines the term ‘diplomatic agent’. There is simply no scope for a contention that, nevertheless, the immunity conferred by Article 31 extends to the State itself, irrespective of whether the acts impugned are carried out on its behalf. That is not to ‘render otiose diplomatic immunity’ in any claim in which the State is sued for the acts of a diplomatic agent; it is to recognise the limit of the diplomatic immunity conferred in relation to such acts (though other Articles given the force of law by the DPA might separately assume a relevance, and affect, for example, the disclosure obligations of the respondent State). Nothing in the academic commentary on which Mr Davies relies undermines that proposition.

I consider Mr Davies’ reliance upon KramerItalo, a 1988 decision of the Nigerian Court of Appeal, to be misplaced. In that case, the Belgian Embassy in Nigeria had commissioned Kramer Italo to build a residence for the Belgian ambassador. Kramer Italo brought an action against the Government of Belgium and the Belgian Embassy in Nigeria, claiming reimbursement of additional expenses incurred in the performance of the building contract. The defendants contended that the suit ought to be struck out on the bases of sovereign immunity, and the entitlement of the embassy staff to diplomatic immunity. In the Lagos High Court, the defendants’ applications were successful. Kramer Italo appealed, asserting that the restrictive doctrine of sovereign immunity allowed the court to exercise jurisdiction in a matter arising from a commercial transaction, into which category the contract to build the residence was said to fall. The appeal was dismissed, the Court of Appeal holding that the defendants were entitled to sovereign immunity, and that, in any event, diplomatic immunity applied vis-à-vis staff of the Belgian Embassy and that to implead a foreign State on the basis of the actions of embassy staff would undermine the basis of diplomatic immunity.

First, and most obviously, Kramer Italo is not a judgment of a Court in this jurisdiction and related to the different provisions of a different statute, enacted in a different country; the Diplomatic Immunities and Privileges Act 1962, of Nigeria. Furthermore, the relevant aspect of the decision was not reasoned and comprised a single paragraph at the end of the judgment of Akpata JCA, at page 310:

Jones v Ministry of Interior of Saudi Arabia [2007] 1 AC 270, HL is not such an authority and relates to State, not diplomatic, immunity. Alcom Limited v Republic of Colombia [1984] AC 580, HL was also concerned with State immunity and the exceptions thereto, and the passage upon which Mr Davies relies, at 592 F-H, simply records counsel’s submission that the operation of a diplomatic mission is a prime example of a sovereign and non-commercial function undertaken by a state within the territory of a receiving state, in the exercise of sovereign authority. The case has nothing to say on the issue here under consideration. Re P (Children Act: Diplomatic Immunity) [1998] 1 FLR 624, FD does not assist the respondent either, in my judgement. In that case, the mother of two children had sought various orders against their father, a diplomat for the United States of America, in London. Her application was dismissed for want of jurisdiction, on the basis of diplomatic immunity. The Court held that there was no provision in the DPA, or in the Vienna Convention, for waiver by individuals enjoying such immunity, which, per Article 32(1) of the Vienna Convention, was the property of the sending State. The court drew support for that conclusion from the earlier decision of Laws J in Propend Finance v Sing, to the effect that a diplomat’s immunity did not belong to him ‘in any right of his own’, but ‘in right of his sending State’, for which reason only the sending State could waive his immunity. That does not provide support for the respondent’s position because it confuses the source, and means of waiver, of the immunity with the individual to whom it attaches. Thus, a diplomat’s immunity is conditional, because his own State may cancel it, but the immunity, nevertheless, attaches to him personally.

Kuwait Investment Office v Hard [2022] EAT 51, on which Mr Davies also relies, was concerned with Articles 24 and 27 of the Vienna Convention, respectively concerned with the inviolability of the archives and documents of the diplomatic mission and with free communication on the part of the mission for all official purposes. Unlike Article 31, neither Article relates to the immunity of the diplomatic agent himself, nor was that case concerned with the sending State’s ability to invoke the latter for itself.

Omerri, decided by the National Industrial Relations Court in 1972, predated the SIA. Mr Omerri claimed that, whilst employed as a registry clerk by the Uganda High Commission, he had been unfairly dismissed, contrary to the Industrial Relations Act 1971. The industrial tribunal stayed the claim, giving as its reasons that:

In his very short judgment dismissing Mr Omerri’s appeal, Sir John Donaldson stated:

I also consider Mr Davies’ reliance upon Article 3 of the United Nations Convention on Jurisdictional Immunities of States and Their Property 2004 to be misplaced. That Article provides:

First, as noted in Benkharbouche [12] and acknowledged by Mr Davies, the 2004 Convention has been signed, but not ratified, by the United Kingdom. As Lord Sumption observed [12], to date it has attracted limited support. In any event, nothing in Article 3 establishes the proposition which he advances. It does not identify the nature and extent of the particular immunities which it is said not to exclude. Similarly, Article 32 of the European Convention on State Immunity (Basle, 16 May 1972), on which Mr Davies relies to the same end, provides simply that, ‘Nothing in the present Convention shall affect privileges and immunities relating to the exercise of the functions of diplomatic missions and consular posts and of persons connected with them.’ It says nothing of what those privileges and immunities are, or of which of them is conferred on the State. As was observed in Benkharbouche ([9] and [10]), that treaty has, to date, attracted limited international support, having been ratified by only eight of the 47 countries of the Council of Europe, and is concerned mainly with acts of a kind which would generally not attract State immunity under the restrictive doctrine. Whilst one purpose of the SIA was to give effect to the Basle Convention, enabling its ratification by the United Kingdom in 1979, by that time the Convention had been largely superseded by the adoption of the restrictive doctrine of State immunity at common law.

As Lord Sumption JSC held in Benkharbouche ([31] and [32]):

In short, there is nothing in the caselaw and materials to which my attention has been drawn which demonstrates any recognised rule in customary international law supportive of the position adopted by the respondent in relation to diplomatic immunity.

Like the Tribunal, I am fortified in my conclusions on issue one by the structure of those provisions of the EqA which are engaged in this case, but do not consider them to be determinative of the outcome. Those provisions afford an illustration, in domestic law, of the circumstances in which the liability of an employer or principal (‘B’) may differ from that of the employee or agent (‘A’) by whom it acts. Mr Jackson was right to observe that the liability created by section 109 is not vicarious; it is a primary liability for the acts of the relevant employee/agent, which, in the case of an employer, may be avoided if B establishes the defence for which section 109(4) provides (i.e. that B took all reasonable steps to prevent A from doing the relevant thing, or from doing anything of that description). That is an instance, in domestic law, of circumstances in which the liability of the acting employee can diverge from that of the employer and arise on a different basis. As a matter of law, there is nothing inherently problematic in such a state of affairs.

In my judgement, the diplomatic immunity for which Article 31 of the Vienna Convention provides attaches to the diplomatic agent and cannot be invoked by the sending State, as respondent, on its own behalf. The Tribunal was correct so to hold.

It is convenient to consider these issues together. Mr Davies contended that the Tribunal had misapplied the distinction, for which the Vienna Convention provides, between, on the one hand, an inherently sovereign or governmental act of the Sending state, and, on the other, a private act, by focusing solely on whether the claimant’s contract of employment had been concluded pursuant to such an act. He submitted that discrimination is a statutory tort and that the Tribunal ought to have considered whether the acts or omissions alleged to have constituted that tort had been committed in the context of, pursuant or ancillary to an inherently sovereign or governmental act. That, he submitted, was consistent with the amendment made by the 2023 Order to section 16(1), whereby section 16(1)(a) had been substituted with the following sub-sections, which indicated that the respondent’s interpretation of Benkharbouche was correct:

Mr Davies contended that the Tribunal had failed to have due regard to the guidance at paragraphs 57 to 59 of Benkharbouche. The acts of which complaint was made had been those of Sr Gonzalez, a diplomatic agent. Mr Davies further submitted that the Benkharbouche exception did not apply to members of administrative and technical staff, as defined by Article 1(f) of the Vienna Convention; the Supreme Court’s conclusions at paragraphs 69 to 74 had related to Article 1(g); members of the service staff.

Alternatively, Mr Davies submitted, the exception did not apply to the claimant in particular. She had been employed as the ambassador’s social secretary and had carried out the duties of a Protocol Officer. She had dealt with confidential documents and the content of the diplomatic bag. The fact that such documents might have been enclosed in sealed envelopes was neither here nor there and the United Kingdom’s obligations under international treaties ought not to be determined by reference to trivial facts. Under the Vienna Convention, there was a distinction between personal secretaries, cypher clerks and wireless operators, on the one hand, and staff whose functions were essentially domestic, on the other. The claimant had not been in the domestic service of a member of the mission; she had worked in the mission itself. The Benkharbouche exception applied only to cooks and cleaners.

Mr Jackson submitted that the Tribunal had cited paragraphs 57 to 59 of Benkharbouche in full. Those comments expressly related to State immunity. The respondent had failed to identify the central State feature to which the following pleaded allegations had related, or to address the Tribunal thereon: treating the claimant with suspicion; accusing her of using a disrespectful tone; interrogating her motives in returning to work for the Kingdom of Spain; making her the subject of jokes to the effect that she was a double agent for the United Kingdom; ridiculing her by reference to personal matters; informing her that, if she did not like working in the embassy, there were plenty of Spaniards who would like her job, thereby insinuating that she was not ‘properly’ Spanish; repeatedly criticising British people and the British Government solely in front of the claimant; treating two of her Spanish-born colleagues more favourably; and bombarding her with e-mails, contrary to the approach adopted towards other staff. There appeared to be a tension between the respondent’s submission that the nature of the alleged acts themselves ought to have been considered (ground 4) and its submission that it was the nature of the claimant’s employment which ought to have been considered (ground 5). Mr Jackson contended that those positions were mutually exclusive and that it was the character of each allegedly discriminatory act, and not the claimant’s own activities, which ought to be considered. That approach was said to be consistent with Article 31 of the Vienna Convention which, by contrast with section 4 of the SIA, was not concerned with the status of the claimant. None of the acts alleged in this case was, inherently, sovereign in nature and the absence of evidence from either party on the issue meant that it could not have been treated as such. There was a distinction to be drawn between the nature of the claimant’s job and her role, on the one hand, and the nature of the respondent’s acts, on the other. The Tribunal’s conclusion that the acts in question had not been sovereign in nature could not be considered perverse.

It is important to bear in mind the provisions of the SIA with which issues two and three are concerned. I set out below all such sections, as they stood prior to the 2023 Order and at the time of the Tribunal’s consideration of the preliminary issues:

At paragraph 63 of its judgment, the Tribunal cited from [53] to [59] of Lord Sumption JSC’s judgment in Benkharbouche:

So far as material to issues two and three, the claims advanced in this case are of race discrimination and harassment, contrary to the EqA. Having regard to section 4(6) of the SIA, each such claim would constitute ‘proceedings relating to a contract of employment’, for the purposes of section 4(1) of the SIA. As is clear from the dicta of Lord Sumption JSC, cited above, when considering State immunity the question is whether the employment claim arises out of an inherently sovereign or governmental act of the foreign State. Per The I Congreso, in addressing that question the court must consider the whole context in which the claim is made. In the great majority of cases, the categorisation will depend on the nature of the relationship between the parties to which the contract gives rise, in turn depending on the functions which the employee is employed to perform. Administrative and technical staff perform an essentially ancillary and supportive role. The employment of some of them might be exercises of sovereign authority, if their functions are sufficiently close to the governmental functions of the mission. But, the character of the employment will not always and necessarily be decisive. A State’s immunity may extend to some aspects of its treatment and not others. Territorial connections between the employee and the foreign and forum States can never be entirely irrelevant, but there is limited international consensus as to the extent to which the territorial principle can displace the rule which confers immunity on sovereign acts but not on acts of a private law nature.

In this case, following an earlier order for particulars, the pleaded acts of discrimination and harassment were set out over three pages, in a document headed ‘Claimant’s basis for the racial discrimination claim’. It is clear, from the first paragraph, that the alleged acts pleaded thereafter were said to have taken place, ‘upon rejoining the Spanish Embassy on the 22.04.2013’. They included alleged treatment as summarised by Mr Jackson and recorded above. The claimant additionally made reference to the restriction of her access to the electronic documents register system and to parts of the embassy building; to the respondent’s preparation of a report at a time when she had been on sick leave, with a view to initiating disciplinary proceedings against her; and to an argument with the Vice-Chancellor. The alleged acts of discrimination are said to have ‘contributed to [her] decision to resign’.

Nothing in her contract of employment identified the duties which the claimant had been employed to perform. In her witness statement before the Tribunal, the claimant did not detail the duties which she had in fact performed, albeit stating that, from the Summer of 2013, they had included ‘most of the protocol-related duties previously undertaken by the Protocol Officer’ [8]. In her witness statement, the then Canciller, stated that she had not worked at the Embassy during the period over which the claimant had been employed, but recorded her understanding that the claimant had been employed ‘toperform the following functions: social secretary to the ambassador, the handling of communications, and IT equipment, accounting, telephone calls, typing, interpreting, translation, filing, registering documents, and other administrative tasks related to her role that may be assigned by the head of mission or the senior staff in which the former may delegate their authority.’ [17]

The Tribunal’s conclusion as to ‘whether the interactions complained of between the Claimant and Mr Gonzales’ had arisen out of an inherently sovereign or governmental act of the State of Spain was briefly stated and its foundation was not explained. It is fairly to be assumed that it was informed by the findings of fact set out at paragraph 16 of its judgment (summarised at paragraph 4, above). In the absence of any detail, the Tribunal’s summary of the claimant’s activities upon her return to work in 2013 says little of her functions and, in particular, of how close they were to the governmental functions of the mission. Each case is fact-sensitive. In this case, both parties urge that the relevant context in which the claim is made extends beyond the nature of the relationship to which the contract gives rise and necessarily engages consideration of the pleaded case as to discrimination, albeit that Mr Davies, candidly, acknowledged that that submission ‘was not the subject of focus before the Tribunal; thoughts develop on appeal and I accept criticism in that regard’. It is, perhaps, unsurprising in that context, and in the context of paragraph 54 of Benkharbouche, that the Tribunal does not appear to have had regard to the latter. Nevertheless, if the submission is correct (as, in this case, I consider it to be, in accordance with the principle articulated at paragraph 58 of Benkharbouche) that, too, does not inexorably lead to the conclusion urged by the respondent, whether the pleaded acts are considered in isolation or in combination with the functions which the claimant was employed to perform, as identified by the Tribunal. The nature of the acts of discrimination alleged in this case is not inevitably inherently sovereign or governmental, nor was it the subject of elaboration in evidence before the Tribunal. In my judgement, had the Tribunal considered those acts, it would have come to the same conclusion.

Mr Davies’ submission that the exception in Benkharbouche relates only to domestic staff plainly puts his case too high. If the submission is that Lord Sumption’s analysis was obiter in so far as it related to employment other than that of the nature carried out by Ms Janah and Ms Benkharbouche, I reject it. His analysis of the application of the restrictive doctrine of State immunity to contracts of employment, as a matter of customary international law, was a necessary part of his conclusion, forming part of the ratio decidendi. I regard the distinction which Mr Davies seeks to draw between staff falling, respectively, within Articles 1(f) and (g) of the Vienna Convention as lacking any principled basis.

Thus, whilst accepting that the Tribunal ought to have had, but did not have, regard to the pleaded acts of discrimination in this case, it is a trite proposition of law that a perversity appeal ‘ought only to succeed where an overwhelming case is made out that the employment tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence, and the law, would have reached. Even in cases where the appeal tribunal has “grave doubts” about the decision of the Employment Tribunal, it must proceed with “great care”, British Telecommunications PLC v Sheridan [1990] IRLR 27 at para 34.’ (Yeboah v Crofton [2002] IRLR 635 [93]). I am not satisfied that the respondent has surmounted the high hurdle imposed by Yeboah and related authority, so as to establish that the Tribunal’s decision that the employment claim here did not arise out of an inherently sovereign or governmental act of the foreign State was perverse.

The short point advanced by Mr Davies is that the Tribunal misapplied Benkharbouche. As the claimant had dual nationality, she was no less a national of the Kingdom of Spain than she was a Briton. In Benkharbouche, sub-section 4(2)(a) was held to have been justified as a matter of customary international law [64] and ought not to have been disapplied by the Tribunal. Article 8 of the Vienna Convention (Footnote: ²) permitted discrimination on grounds of nationality and, indeed, required it in some circumstances. The premise of a diplomatic mission was that it represented the interests of the members of one nation, possibly in cooperation with, but potentially against the interests of, the other nation. Loyalty to the sending State was a necessary condition of employment. Professor Denza’s view was that the sending State’s right to appoint whom it pleased extended to a right to dismiss. The latter did not sit comfortably with the right to claim for a discriminatory dismissal. The fact that the 2023 Order had since amended section 4(2)(b) of the SIA, whilst leaving section 4(2)(a) undisturbed, indicated that the Supreme Court’s rationale in relation to the former section did not apply to the latter.

Mr Jackson acknowledged that the fact that an individual possesses dual nationality does not render her any less a national of either country. He further acknowledged that, if section 4(2)(a) of the SIA reflected customary international law, there could be no basis for its disapplication. The question was whether that law was as the respondent contended. Mr Jackson submitted that the general principle from customary international law was that absolute bars were not permitted. In this case, they would interfere with the obligations conferred by Article 6 ECHR, Article 47 of the Charter, Article 10 of the Treaty on the Functioning of the European Union, and/or the Race Equality Directive (reinforced by recital 26 thereto). Whilst Benkharbouche had not been concerned with section 4(2)(a) of the SIA and, thus, was not binding as to its application, it was binding in relation to section 16(1)(a), the Supreme Court’s reasoning in relation to which applied with equal force to section 4(2)(a).

In the form in force at the material time, sections 4(2)(a) and 16(1)(a) of the SIA extended immunity to the State irrespective of whether the acts in question were exercises of sovereign authority or acts of a private law character. As Lord Sumption held in Benkharbouche ([63] to [67]), in concluding that section 4(2)(b) of the SIA was not justified by any binding principle of customary international law:

That Benkharbouche did not itself decide the application of section 4(2)(a) is clear. Nevertheless, at [59], Lord Sumption had observed that, ‘There is, however, only limited international consensus on where the boundaries lie between the respective territorial responsibilities of the foreign and the forum state, and on how far the territorial principle can displace the rule which confers immunity on acts jure imperii but not on acts jure gestionis.’ That proposition was revisited and fortified at paragraphs 65 and 66. In that context, I confess to having some difficulty in understanding the basis of his unexplained observation that ([64]): ‘Section 4(2)(a) extends the immunity to claims against the employing state by its own nationals. As I have said, this may have a sound basis in customary international law, but does not arise here’, particularly in light of the concluding sentence to the same paragraph: ‘Both subsections [4(2)(a) and 4(2)(b)] apply irrespective of the sovereign character of the relevant act of the foreign state.’ It may be that he was drawing a distinction between a ‘sound basis in’ and ‘a rule of’ customary international law, the former indicative of some support, albeit lacking the requisite degree of consensus to which he had referred at [31] of his judgment.

In any event, once it is acknowledged that the Tribunal’s finding as to the private law character of the acts in question is not susceptible of challenge, the rationale of the Supreme Court for the disapplication of section 4(2)(b) applies equally to section 4(2)(a). I have been provided with no materials which would satisfy the requirements set out in paragraph 31 of Benkharbouche in establishing a rule of customary international law undermining the conclusions highlighted above. That, it seems to me, is dispositive of this issue. Mr Davies’ submissions, whether deriving from Article 8 of the Vienna Convention or a sending State’s right to appoint and dismiss employees, are not on point, essentially for the reasons set out at paragraph 70 of Benkharbouche (set out below, with emphasis added, albeit that that paragraph was directed towards consideration of section 16(1)(a) of the SIA and, in that context, to whether there was a special rule applicable to embassy staff):

Having concluded that section 4(2)(a) of the SIA is not justified by any binding principle of customary international law, it follows that it cannot operate to deprive the Tribunal of jurisdiction over the respondent and the Tribunal was right so to hold. As a conflict between EU law (here, Article 47 of the Charter) and English domestic law must be resolved in favour of the former and the latter must be disapplied (Benkharbouche [78]), the Tribunal was obliged to disapply that section.

It follows that, of the five grounds of appeal which were pursued by the respondent (being two, three, four, five and six), all except ground four fail and are dismissed. As a matter of principle, ground four is allowed, but has no effect on the outcome of the preliminary hearing, such that the judgment of the Tribunal stands.