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Diplomatic immunity

Employment Law Review Weekly Issue 856 08 February 2024


Although sovereign states can claim immunity against employment tribunal complaints in certain circumstances, the Employment Appeal Tribunal (EAT) held in The Kingdom of Spain v Lorenzo that it does not apply if the alleged act of discrimination did not arise from an “inherently sovereign or governmental act”. Nor can states claim immunity under rights that attach to individual diplomats.

Basic facts

Ms Lorenzo, who has dual British and Spanish nationality, brought claims of race discrimination and harassment under the Equality Act 2010, among other things, against the Kingdom of Spain.

In its defence, Spain argued that the claims were barred on two grounds. Firstly, it had immunity under the Vienna Convention on Diplomatic Relations 1961 (VCDR) by virtue of the fact that one of the individuals named in the complaint was a diplomat. Secondly, it was protected by the State Immunity Act 1978 (SIA) as the claims arose out of an “inherently sovereign or governmental act” carried out by a diplomat of the Kingdom of Spain. 

The question that arose was whether, following the decision by the Supreme Court in Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs, this approach contravened article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the right to a fair hearing) and/or article 47 of the Charter of Fundamental Rights of the EU (the right to an effective remedy and a fair trial). If so, the relevant sections of the SIA would not apply.

Relevant law

Section 4 of the SIA states that a state is not immune from the jurisdiction of the UK courts unless under section 4(2)(a) “the individual is a national of the state concerned” or under 4(2)(b) they are “neither a national of the United Kingdom nor habitually resident there”.

The Supreme Court held in Benkharbouche that as the provisions of section 4(2)(b) infringed both article 6 and article 47, they should be disapplied in respect of claims derived from EU law.

Tribunal decision

The tribunal held firstly that diplomatic immunity did not apply as the claims had been brought against the Kingdom of Spain, not an individual diplomat.

Secondly, although Spain had state immunity under section 4(2)(a) of the SIA because Ms Lorenzo was a Spanish national (as well as the UK) at the relevant time, the tribunal held that it was bound by the decision in Benkharbouche to disapply section 4(2)(b) because to do otherwise would contravene articles 6 and 47. In any event, the functions which she performed had not arisen out of an “inherently sovereign or governmental act” of the State of Spain.

The Kingdom of Spain appealed, arguing (among other things) that the tribunal had misapplied Benkharbouche and its decision was perverse.

EAT decision

Dismissing the appeal, the EAT held that the tribunal was correct that the immunity conferred on a diplomatic agent by Article 31 of the Vienna Convention did not extend to a state when it was the respondent in a claim under the Equality Act 2010.

When considering state immunity, the question for the tribunal was whether the employment claim arose out of an inherently sovereign or governmental act of the foreign state. In order to decide that point, tribunals must consider the whole context in which the claim was made.

Although the tribunal in this case had not properly considered whether the alleged acts of discrimination had arisen out of an inherently sovereign or governmental act of the State of Spain, its decision had not been perverse.

As a conflict between EU law and English domestic law must be resolved in favour of the former, the tribunal was right to disapply section 4(2)(a), allowing Ms Lorenzo’s claims under the Equality Act to proceed.