Under the doctrine of state immunity, the courts of one state cannot adjudicate on the sovereign or governmental acts of another state unless the act in question is considered to be private. In Webster v United States of America, the Employment Appeal Tribunal (EAT) held that, as the functions carried out by the claimants would involve a judicial investigation by a British tribunal of the sovereign acts of a foreign state, it was contrary to the principle of state immunity.


Basic facts

This was a conjoined appeal brought by two women who worked at two separate American Air Force bases located in the UK.

Ms Webster, who was based at RAF Lakenheath, worked as the assistant base records manager responsible for maintaining, preserving and on occasion, destroying US military records. She lodged a number of tribunal claims including discrimination, unauthorised deduction from wages and protected disclosure detriment.

Ms Wright worked as a firefighter at RAF Croughton, which was a US Air Force intelligence and communications base. Her main role was “the preservation of life and the protection of property”. After she was diagnosed with epilepsy in early 2017, she was taken off firefighting duties in accordance with US National Fire Protection Association guidelines. She also lodged a number of tribunal claims.

In its defence, the US argued that the doctrine of state immunity prevented both women from bringing claims in the UK employment tribunal system.


Tribunal decision

Although the facts, in this case, were very different from those in the Supreme Court decision of Benkharbouche v Embassy of the Republic of Sudan, the tribunal judge was satisfied that the judgment provided him with an “invaluable insight into the relevant law”.

In particular, it provided him with the test he should use to analyse whether 'an act is private or sovereign/governmental'. In the context of an employment claim, this depended 'on the nature of the relationship between the parties to which the contract gives rise', which in turn depended 'on the functions which the employee is employed to perform'.

In the case of Ms Webster, the judge found that military record-keeping constituted a function of the state. In order to prove her claim, the US would, therefore, have to objectively justify treatment that was unlawful under the Equality Act 2010 (assuming it applied) which would constitute a judicial investigation by a British tribunal of the sovereign acts of a foreign state, contrary to the principle of state immunity.

As for Ms Wright, the judge held that as the requirement to maintain an independent fire service was imposed by US law in order to protect the American people, it clearly went beyond the policy objectives of any domestic fire service and was therefore also protected by state immunity.


EAT decision

Dismissing the appeal, the EAT held that the tribunal judge had applied the correct test from the Supreme Court judgment of Benkharbouche. He had also correctly understood that this involved considering the functions that the two women actually carried out, rather than just considering where, and for whom, they worked.

The EAT also noted that the Supreme Court had identified three types of employees in diplomatic missions in its decision – those with inherently governmental functions at one end; those in the middle with technical and administrative roles, such as the jobs done by Ms Webster and Ms Wright; and those with domestic duties at the other end.

In order to decide which side of the line an employee in the middle category fell was 'inherently a matter of factual assessment' for the tribunal. As the judge had correctly analysed the issue of whether state immunity applied in this case, he had “reached a factual determination that was open to him.”