The Government of the State of Kuwait v S Mohamed [2026] EAT 20

“7 It is perfectly clear from that reasoning taken as a whole that this tribunal in Caramba-Coker decided as a matter of ratio (a) that any claim for compensation for personal injury fell within the terms of section 5 notwithstanding that it was consequent on a discrimination claim, and (b) that in this context a claim of mental ill-health caused by the discrimination complained of constituted a claim for “personal injury”

“Sections 4 and 5 are separate and freestanding exceptions to the general rule of state immunity provided by section 1: that is so even though on the facts of a particular case, and specifically in a case of a claim for personal injury by an employee, both exceptions might be engaged. Section 16(1)(a) expressly qualifies that exception as regards section 4 but it has no impact on section 5.”

“Section 16 makes an express carve-out from section 4 but makes no express carve-out from section 5 , although it could have done so. The armed forces exception was expressly provided for by section 16(2), but there is no such equivalent for a claim by an embassy employee.”

“29. That makes it strictly unnecessary to deal with the other two issues, but I will nevertheless refer to them briefly, and express my view on the first of them [i.e. the section 5 issue].”

“The s 5 issue: was this a personal injury claim to which state immunity does not apply? 30. In Federal Republic of Nigeria v Ogbonna [2012] 1 WLR 139 , Ms Ogbonna, who was employed as a member of a diplomatic mission, brought a claim for associative disability discrimination in respect of her dismissal, which she said had occurred because she sought time off to look after her sick daughter. She claimed to have suffered both physical and mental injuries as a consequence. The employer claimed state immunity, arguing that s 16(1)(a) of the 1978 Act prevented her from relying on s 4 to bring an employment claim, and that she could not rely on s 5 , either (i) because s 16(1)(a) applied state immunity in respect of all employment claims by members of diplomatic missions regardless of s 5, or (ii) because s 5 applies only to a claim for damages for physical injury and not to harm to mental health unless it was consequent on a physical injury. 31. In the ET, the employer's claim to state immunity was dismissed by EJ Walker. On appeal to the EAT, this decision was upheld by the President, Underhill J (as he then was). He held that ss 4 and 5 of the Act were separate and free-standing exceptions to the general rule of state immunity even where, on a claim for personal injury by an employee, both exceptions might be engaged. He also held that the phrase "personal injury" in s 5 bore its normal meaning in domestic law so as to cover cases of psychiatric as well as physical injury. 32. The second of these two issues appears to have been the main focus of the submissions in Ogbonna . Underhill J's ruling to that effect has recently been shown to be correct by the decision of this court (Lady Carr CJ, Males and Warby LJJ) in Shehabi v Kingdom of Bahrain [2025] 2 WLR 467; [2024] EWCA Civ 115. The claimants alleged that employees of the defendant state while located abroad had caused spyware to be installed remotely on the claimant's computers located in the UK, which had caused the claimants psychiatric injury when they discovered that the defendant had been spying on them in that way. The court held that a standalone psychiatric injury was a personal injury within the meaning of s 5 of the 1978 Act. Ogbonna was cited and approved on this issue: see paragraphs [96]-[107] of the judgment of Males LJ. Ms Darwin accepted that Shehabi resolves this issue authoritatively at the level of this court. 33. However, Shehabi was not an employment case and tells us nothing about the interaction of ss 4 and 5. There is no authority at the level of this court deciding whether Ogbonna was correct on the first issue. Although it is not necessary to determine the point, I consider that on the first issue Ogbonna is wrong. It would be very peculiar if an employee of an embassy, perhaps a very senior diplomatic agent, could be precluded from bringing any employment claim by virtue of ss 4 and 16, including a claim for compensation for discrimination, with the exception that if the discrimination caused psychiatric injury that element of the claim could not be defeated by state immunity. That would drive a coach and horses through the careful scheme of exceptions created under ss 4 and 16. 34. The exception created by s 5 is in my view linked to the cause of action, not the nature of the damage. If a chandelier at an embassy in London drops from the ceiling and causes injury to the person standing beneath it, there is no obvious rationale for conferring immunity on the state occupying the premises, whether the injured person is a diplomatic agent, a member of the technical and administrative staff, a member of the domestic staff, or simply a visitor to the premises. That would apply whether the injury caused was physical, psychiatric or both. But a claim by an employee that her employer had discriminated against her and thereby caused her harm of various kinds including psychiatric injury falls squarely within the scheme of ss 4 and 16.”

“As a matter of customary international law, if an employment claim arises out of an inherently sovereign or governmental act of the foreign state, the latter is immune.”

“102. I agreed with the Respondents that the judgment of Bean LJ in the Court of Appeal in Alhayali, with whom the other judges agreed, has provided persuasive authority that, if an employment claim is subject to state immunity by virtue of ss4 and 16, the Claimant cannot rely on s5 as an alternative ground on which to exclude immunity on the basis that the claim includes damages for personal injury. 103. The Court of Appeal heard full argument on the s5 personal injury exception. It carefully considered and clearly disagreed with, and disapproved of, the EAT’s decision in Nigeria v Ogbonna. 104. I considered that I should follow the reasoning of the Court of Appeal in Alhayali. The Second Claimant’s personal injury claim arises out of a cause of action which is barred by state immunity under ss4 and 16 SIA. It is not a freestanding personal injury claim. It would be contrary to the scheme of the SIA to resurrect the same cause of action because a different type of damage arises out of it.”

“The relevance of previous decisions of this appeal tribunal 72. In Secretary of State for Trade and Industry v Cook [1997] ICR 288 this appeal tribunal said, at p 292: “The appeal tribunal is not bound by its previous decisions, although they will only be departed from in exceptional circumstances, or where there are previous inconsistent decisions.” 73. It seems to me that one logical extension of that last situation is where there are conflicting decisions, not of this appeal tribunal itself, but of this appeal tribunal and other courts or tribunals. This can readily be seen to be analogous to the situation where there are inconsistent decisions of this appeal tribunal itself, at least where there is said to be an inconsistent decision of a court of co-ordinate jurisdiction to this appeal tribunal. That seems to me to have been the position in Timothy James Consulting Ltd v Wilton [2015] ICR 764, which was a decision of mine: see paras 61–90, which concerned the issue of whether an award of compensation for injury to feelings in a discrimination case is liable to income tax. I held that it was not. I preferred the reasoning of this appeal tribunal in Orthet Ltd v Vince-Cain [2005] ICR 374 to that in the decision of the First-tier Tribunal (Tax Chamber) in Moorthy v Revenue and Customs Comrs [2014] UKFTT 834 (TC) . It was argued before me that the decision of this appeal tribunal in Orthet was wrong and should not be followed because it was inconsistent with an earlier decision of the High Court in Horner v Hasted [1995] STC 766, which had not been cited in Orthet. I note in passing that, since the hearing in the present appeal took place before me, the decision of the First-tier Tribunal in Moorthy has been upheld by the Upper Tribunal (Tax and Chancery Chamber) [2016] UKUT 13 (TCC) , which came to the conclusion that Horner v Hasted should be preferred to the decisions of this appeal tribunal in Orthet and Timothy James, which should not be followed. Be that as it may, that does not affect the underlying principles which are material for present purposes. 74. Further guidance is to be found in Inland Revenue Comrs v Ainsworth (unreported) 4 February 2004, a decision of Burton J (President), sitting with lay members. At para 9 of the judgment Burton J observed that counsel for the revenue did not put forward any case that the earlier decision in Kigass Aero Components Ltd v Brown [2002] ICR 697 was either “manifestly wrong” or per incuriam. Rather counsel simply (i) invited this appeal tribunal to reconsider the same scenario and come to a different conclusion; and (ii) submitted that he had different arguments, not apparently run in Kigass, which might persuade this tribunal where different or similar arguments failed to persuade a differently constituted tribunal two years earlier. As Burton J made clear at paras 15–16 of the judgment, the appeal tribunal was not prepared to accede to that invitation. Rather he said, at para 16: “It appears to us quite plain that it would be quite inappropriate for there to be … further consideration by an Employment Appeal Tribunal of this case at this level. Even if we might be persuaded that there are arguments, and we plainly are persuaded, on both sides, this would be a re-argument, contrary to our practice, of a persuasive recent decision of the Employment Appeal Tribunal, and possibly of three such recent decisions. If Kigass is to be changed, it must, in our judgment, be done by the Court of Appeal …” 75. In the light of the authorities to which I have referred it may be helpful if I summarise the applicable principles when this appeal tribunal is invited to depart from an earlier decision of its own. Although this appeal tribunal is not bound by its own previous decisions, they are of persuasive authority. It will accord them respect and will generally follow them. The established exceptions to this are as follows: (1) where the earlier decision was per incuriam, in other words where a relevant legislative provision or binding decision of the courts was not considered; (2) where there are two or more inconsistent decisions of this appeal tribunal; (3) where there are inconsistent decisions of this appeal tribunal and another court or tribunal on the same point, at least where they are of co-ordinate jurisdiction, for example the High Court; (4) where the earlier decision is manifestly wrong; (5) where there are other exceptional circumstances.”

“81. A number of cases were cited to me in which this appeal tribunal has departed from an earlier decision of its own, in order to persuade me to take a similar approach in the present context. Particular emphasis was placed by Mr Cavanagh on the decision in Ministry of Defence v Hunt [1996] ICR 554 (Maurice Kay J, sitting with lay members). In that case this appeal tribunal departed from its earlier decision in Ministry of Defence v Bristow [1996] ICR 544 (Tucker J, sitting with lay members). At pp 566–567, Maurice Kay J said: “Although we are not bound by previous decisions of this appeal tribunal, we would not depart from one except after the most careful consideration. With due respect to the constitution of this tribunal in Bristow, we are satisfied that we have received far fuller submissions on this matter than our colleagues did in that case. We do not share the equanimity of the Ministry of Defence to which we have just referred. In our judgment, its approach to the issue is potentially productive of injustice.” 82. Pausing there, Mr Cavanagh submits that, in the present case too, the reasoning of Langstaff J in Bear Scotland is “potentially productive of injustice”

“There is, however, in section 1(2) a clear direction to all courts and tribunals that effect should be given to immunity and this must be capable of overriding procedural rules.”

“State immunity is a mandatory rule of customary international law which defines the limits of a domestic court’s jurisdiction … It derives from the sovereign equality of states. Par in parem non habet imperium.”

“Where state immunity is applicable, the national court has no jurisdiction to exercise.” 38. These statements demonstrate the importance of compliance by domestic courts with international law rules on state immunity. If a court exercises jurisdiction over a foreign state which is entitled to state immunity, there is a breach of international law. To require a foreign state entitled to immunity to appear before a court and to enquire into its conduct of sovereign affairs would be a violation of the foreign state’s sovereignty.”

“The overriding duty of the court, of its own motion, is to satisfy itself that effect has been given to the immunity conferred by the State Immunity Act 1978. That duty binds all tribunals and courts, not just the court or tribunal which heard the original proceedings.If the tribunal in the original proceedings has not given effect to the immunity conferred by the Act, then it must be the duty of the appeal tribunal to give effect to it by correcting the error.”

“18. We are concerned with the scope of section 5 of the State Immunity Act 1978 . The circumstances in which the common law, following the development of international law, moved from a near absolute principle of state immunity to a restrictive theory, distinguishing between “acta jure imperii” and “acta jure gestionis”, are well known. The story is traced by the Supreme Court in Argentum Exploration Ltd v The Silver[2025] AC 555 at paras 17–22 . This was the background to the 1978 Act . 19. However, the Act did not attempt simply to enact the restrictive theory of state immunity as it had so far developed, but provided what the Supreme Court in Argentum at para 25 described as “a new statutory scheme providing detailed and comprehensive rules governing both adjudicative and enforcement jurisdiction in cases involving foreign and Commonwealth states”

“An Act to make new provision with respect to proceedings in the United Kingdom by or against other States; to provide for the effect of judgments given against the United Kingdom in the courts of States parties to the European Convention on State Immunity; to make new provision with respect to the immunities and privileges of heads of State; and for connected purposes.” 20. That statutory scheme must be interpreted in accordance with the usual principles of statutory interpretation. These have been authoritatively explained in the judgment of Lord Hodge DPSC in R (O) v Secretary of State for the Home Department [2023] AC 255 : “28. Having regard to the way in which both parties presented their cases, it is opportune to say something about the process of statutory interpretation. “29. The courts in conducting statutory interpretation are ‘seeking the meaning of the words which Parliament used’: Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, 613 per Lord Reid. More recently, Lord Nicholls of Birkenhead stated: ‘Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context.’ (R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd [2001] 2 AC 349, 396 ). Words and passages in a statute derive their meaning from their context. A phrase or passage must be read in the context of the section as a whole and in the wider context of a relevant group of sections. Other provisions in a statute and the statute as a whole may provide the relevant context. They are the words which Parliament has chosen to enact as an expression of the purpose of the legislation and are therefore the primary source by which meaning is ascertained. There is an important constitutional reason for having regard primarily to the statutory context as Lord Nicholls explained in Spath Holme, p 397: ‘Citizens, with the assistance of their advisers, are intended to be able to understand parliamentary enactments, so that they can regulate their conduct accordingly. They should be able to rely upon what they read in an Act of Parliament.’ “30. External aids to interpretation therefore must play a secondary role. Explanatory Notes, prepared under the authority of Parliament, may cast light on the meaning of particular statutory provisions. Other sources, such as Law Commission reports, reports of Royal Commissions and advisory committees, and Government White Papers may disclose the background to a statute and assist the court to identify not only the mischief which it addresses but also the purpose of the legislation, thereby assisting a purposive interpretation of a particular statutory provision. The context disclosed by such materials is relevant to assist the court to ascertain the meaning of the statute, whether or not there is ambiguity and uncertainty, and indeed may reveal ambiguity or uncertainty: Bennion, Bailey and Norbury on Statutory Interpretation , 8th ed (2020), section 11.2. But none of these external aids displace the meanings conveyed by the words of a statute that, after consideration of that context, are clear and unambiguous and which do not produce absurdity. In this appeal the parties did not refer the court to external aids, other than explanatory statements in statutory instruments, and statements in Parliament which I discuss below. Sir James Eadie QC for the Secretary of State submitted that the statutory scheme contained in the 1981 Act and the 2014 Act should be read as a whole. “31. Statutory interpretation involves an objective assessment of the meaning which a reasonable legislature as a body would be seeking to convey in using the statutory words which are being considered. Lord Nicholls, again in Spath Holme, p 396 , in an important passage stated: ‘The task of the court is often said to be to ascertain the intention of Parliament expressed in the language under consideration. This is correct and may be helpful, so long as it is remembered that the “intention of Parliament” is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman, or of individual members or even of a majority of individual members of either House … Thus, when courts say that such-and-such a meaning “cannot be what Parliament intended”, they are saying only that the words under consideration cannot reasonably be taken as used by Parliament with that meaning’.” 21. I would add that section 5 of the 1978 Act is expressed in plain and straightforward language. That language is the primary source by which its meaning must be ascertained. 22. Further, as explained by the Supreme Court in General Dynamics United Kingdom Ltd v State of Libya [2022] AC 318, at para 59, the 1978 Act must be understood in the context of the twin (and equally important) principles of international law on which the law of state immunity is based, summarised in these terms by the International Court of Justice in Jurisdictional Immunities of the State (Germany v Italy) [2012] ICJ Rep 99: “57. The Court considers that the rule of State immunity occupies an important place in international law and international relations. It derives from the principle of sovereign equality of States, which, as article 2, paragraph 1, of the Charter of the United Nations makes clear, is one of the fundamental principles of the international legal order. This principle has to be viewed together with the principle that each State possesses sovereignty over its own territory and that there flows from that sovereignty the jurisdiction of the State over events and persons within that territory. Exceptions to the immunity of the State represent a departure from the principle of sovereign equality. Immunity may represent a departure from the principle of territorial sovereignty and the jurisdiction which flows from it.” 23. Beyond this, however, it would be regrettable if the true meaning of section 5 could only be understood by reference to the substantial volume of external material, extending over more than 2,600 pages, cited in the course of this appeal. Indeed, it is notable that in Al-Adsani v Government of Kuwait (No 2) (1996) 107 ILR 536, 549 Ward LJ said of section 5 of the 1978 Act that “ the Act is as plain as plain can be”, an observation endorsed by Lord Bingham of Cornhill and Lord Hoffmann in Jones v Ministry of the Interior of the Kingdom of Saudi Arabia [2007] 1 AC 270 at paras 13 and 38 . 24. Finally as to the general approach to the interpretation of section 5, section 1 is sometimes described as containing the general rule, to which the provisions of sections 2 to 11 are exceptions. But that does not mean that they should be interpreted restrictively, in the way that (for example) a contractual exceptions clause would be interpreted. As Lord Sumption JSC explained in Benkharbouche v Embassy of the Republic of Sudan[2019] AC 777 : “39. I do not regard these considerations as decisive of the present issue. No one doubts that as a matter of domestic law, Part I of the State Immunity Act is a complete code. If the case does not fall within one of the exceptions to section 1, the state is immune. But the present question is whether the immunity thus conferred is wider than customary international law requires, and that raises different considerations. In the first place, it is necessary to read the grant of the immunity in article 5 of the United Nations Convention together with the exceptions which follow, as an organic whole. The exceptions are so fundamental in their character, so consistent in their objective and so broad in their effect as to amount in reality to a qualification of the principle of immunity itself rather than a mere collection of special exceptions …” 25. It appears that Lord Sumption JSC was speaking mainly about the United Nations Convention on Jurisdictional Immunities of States and Their Property 2004 (“the UN Convention”), but this court made clear in London Steam-Ship Owners’ Mutual Insurance Association Ltd v Kingdom of Spain (The Prestige) [2022] 1 WLR 3434 that the same approach applies to interpretation of the 1978 Act : “38. … we were not attracted by Mr Young's argument that a restrictive interpretation should be put on the scope of the definition within subsection (3)(c) because the structure of the Act was one which provided immunity in section 1 and section 3(1)(a) was an exception, thereby giving rise to a strict interpretation of the exceptions if it was to be removed. We do not accept that the structure of the Act provides any basis for such a restrictive approach to construction of the exception sections, for the reasons articulated by Lord Sumption JSC in Benkharbouche at para 39.”

“In Alcom Ltd v Republic of Colombia [1984] AC 580 , 597-598, Lord Diplock, with whom the rest of the Appellate Committee agreed, observed that given the background against which it was enacted, the provisions of the Act: "fall to be construed against the background of those principles of public international law as are generally recognised by the family of nations….” (5) Also in Benkharbouche, at paragraph 53, as I have already said, Lord Sumption said: “As a matter of customary international law, if an employment claim arises out of an inherently sovereign or governmental act of the foreign state, the latter is immune.”

“66. All of this supports the construction of "act or omission" in section 5 as meaning "all acts or omissions", without any restriction as to the nature of the act being read into it.”

“(2) This Part of this Act does not apply to proceedings relating to anything done by or in relation to the armed forces of a State while present in the United Kingdom and, in particular, has effect subject to the Visiting Forces Act 1952.”