YZ v Embassy of the Sultanate of Oman in London and Others: 2200026/2022 and 2205484/2022
EMPLOYMENT TRIBUNALS
Case No 2200026/2022, 2205484/2022
Between
YZClaimantEmbassy of the Sultanate of Oman in London and OthersRespondent
Before
Employment Judge BrownMr J Stuart (instructed by Counsel) for claimantDate 3 July 2025
JUDGMENT
[1]The First Respondent submitted to the jurisdiction in both claims.[2]The Claimant’s functions were not sufficiently close to the governmental functions of the mission for her employment to be an exercise of sovereign authority.[3]The acts complained of in the claims were not exercises of sovereign authority.[4]Accordingly, the Claimant’s claims are not barred by state immunity.
REASONS
Preliminary - Background 1 ph outcome jment and case mngmnt 1.5.14 version[1]By a first claim form, number 2200026/2022, presented on 4 January 2022, the Claimant brought complaints of direct sex discrimination, sex harassment, direct race discrimination and victimisation against the Respondents. She said that she brought a victimisation complaint because she had complained of sexual harassment and racial discrimination. The Claimant said that she had started work on 20 April 2009 and that her employment was continuing. She relied on being a British citizen of Iranian ethnic origin – and on not being Omani - in her complaints. She pleaded that she had suffered psychiatric injury.[2]The Claimant presented her second claim, number 2205484/2022, on 28 July 2022. In that claim she made further complaints of victimisation and complaints of unfair dismissal and failure to pay holiday pay. She said that she brought her victimisation complaint on the basis that her employment was terminated 10 days after she had brought claim number 2200026/2022.[3]In her second claim, the Claimant claims that she was unlawfully victimised by R1 for bringing the first claim and/or for raising the grievances listed in the first claim, including by R1 dismissing her. She contends that the dismissal is also unfair.[4]The Claimant’s third claim (2206488/2022) was dismissed upon withdrawal by the Claimant because it was a duplicate of the second claim number 2205484/2022[5]The first claim was served by the FCDO diplomatic channel on 22 June 2023. The Respondent had 2 months and 28 days from then to present a Response.[6]The second claim was served by the FCDO diplomatic channel on 24 March 2024. The Respondent had 2 months and 28 days from then to present a Response.[7]The First Respondent presented a Response to the first claim on 16 August 2024, asserting diplomatic immunity, but also applying for time to be extended for presentation of its Response, applying to strike out the claim because it had not been actively pursued and/or that a fair hearing was no longer possible and replying to the substantive allegations. The Tribunal accepted the Response on 28 November 2024.[8]R2 and R3 have never filed any ET3 in response to the claim against them - claim 2200026/2022 only. Their address for service on the claim was at R1’s address. At a case management hearing in this case on 14 February 2025, it became apparent that the claim had not been forwarded to them by R1. Following that hearing, the Tribunal re-sent the first claim 2200026/2022 to R2 and R3, at their email addresses, pursuant to an order I had made at that hearing. I also had ordered that R2 and R3 would have 28 days, from the date the claim was re-sent to their email addresses, to present their responses to the claim. They did not present any response.[9]They have not communicated with the Claimant or First Respondent since.[10]R1 has not responded to the second claim. At the case management hearing on 14 February 2025, I noted that the second claim had been served on the Omani Ministry of Foreign Affairs, so that the proceedings had been validly instituted against the First Respondent. This Hearing 2 ph outcome jment and case mngmnt 1.5.14 version[11]R2 and R3 had not been sent the joining instructions for this hearing before it started on 3 July 2025. The Claimant and R1 nevertheless both agreed, at the start of the hearing, that the state immunity issues were to be decided between R1 and the Claimant. R1 did not intend to call or rely on any evidence from R2 and R3. The Claimant and R1 agreed that it would be appropriate to proceed in the absence of R2 and R3.[12]I agreed to proceed in their absence. State immunity did not apply to them as individuals, but to R1, so it was not for them to argue the matter. They had not responded to the claim against them, in any event. As they had not formally indicated that they wished to defend the proceedings, it would have been open to the Tribunal to issue a r22 ET Rules of Procedure 2024 judgment against them personally, so that they would have only been able to participate in the proceedings to the extent permitted by the judge. In all the circumstances, it would therefore not have been in accordance with the overriding objective to postpone the hearing to enable them to attend to make representations.[13]I arranged for the joining instructions to be sent to R2 and R3 in any event, to give them notice of the hearing if they wished to attend and observe.[14]R1 had not exchanged any documents or witness evidence in preparation for this hearing. It had not stated the factual or legal basis for its assertion of state immunity.[15]Ms Fairclough-Haynes, Consultant for R1, indicated at the start of the hearing that the First Respondent would argue that the Claimant’s dismissal was an act of sovereign authority; it would also argue that her functions were so close to the governmental functions of the missions for her employment to be an exercise of sovereign authority. She accepted that R1 had not produced any evidence.[16]I noted that, while R1 had not complied with the Tribunal’s orders for preparing for the hearing, the Tribunal is required to give effect to state immunity – if appropriate – by s1(2) SIA, whether or not the state appears in the proceedings. I said that I would therefore proceed to decide all the issues of state immunity. Accordingly, Ms Fairclough-Haynes, Consultant, for R1, was allowed both to cross examine the Claimant on her evidence and make submissions on all issues. Immunity Issues in this Case[17]This Public Preliminary Hearing was listed to determine the following issues of state immunity in the case:a. Whether the Respondent submitted to the jurisdiction of the Tribunal by presenting a substantive response and by otherwise participating in the proceedings;b. If not, whether Claimant’s claims are barred by State Immunity pursuant to s1 Statute Immunity Act 1978 on the basis that the State entered into the Claimant’s contract of employment in the exercise of sovereign authority (ss.14(1)(b) and s16(1)(aa)(i) SIA 1978) having regard to:: i. What functions was the Claimant employed to perform? 3 ph outcome jment and case mngmnt 1.5.14 version ii. Were the functions which the Claimant was employed to perform sufficiently close to the governmental functions of the mission that her employment was an inherently sovereign or governmental act? iii. (With regard to the second claim only) Were the alleged unlawful acts (dismissal) themselves exercises of sovereign authority? iv. Even if the Claimant’s claims against the First Respondent are barred by state immunity, which if any claims is she able to pursue against the First Respondent for personal injury under s5 SIA 1978?[18]I heard evidence from the Claimant. There was a bundle of documents. Page numbers in this judgment refer to page numbers in the bundle.[19]The Claimant and R1 made written and oral submissions.[20]Where I have referred to the ‘Respondent’, without qualification, in this judgment, that is a reference to the First Respondent.
Findings of Fact
[21]Having heard evidence, including cross examination of the Claimant, I found the following facts:[22]The Claimant was employed by First Respondent, The Embassy of the Sultanate of Oman, from 20 April 2009, pursuant to a written contract dated 21 July 2008, as Senior Academic Advisor in the First Respondent’s Cultural Attaché’s Office.[23]Clause 3 of the contract provided, “If employee satisfactorily completed the probationary period, the contract will be valid for one year from the date of appointment, and it shall be renewed automatically from year to year with the same terms and conditions, unless one party notifies the other on month before expiration that he does not desire to renew the contract. The maximum renewal should not exceed ten years.” P62.[24]From about 2016 the Claimant reported directly to the Cultural Attaché (“CA”). The Cultural Attaché reports to the minister and the secretary of the Oman Ministry of Higher Education, Research, and Innovation(“MOHE”). The Cultural Attaché also reports to the Ambassador of the Embassy of Oman.[25]The Cultural Attaché’s Office acts as a representative of MOHE. It reports to the MOHE. It also acts as the interface between the MOHE and Omani students sponsored by the MOHE to study at universities in the UK.[26]The Omani students with whom the Cultural Attaché’s Office deals are generally sponsored by the MOHE to study a particular subject in the UK. The students obtain a “scholarship” from the MOHE, which decides what subject they should study and at which university. The MOHE, and within it, a Directorate General of Scholarships (“DGS”) and a Scholarship Committee, makes decisions centrally about matters relating to the students, including whether to permit them to change their course, change university, whether to give letters of guarantee for payment of university fees, and or whether to pay health insurance fees. At Bundle pp 262 to 4 ph outcome jment and case mngmnt 1.5.14 version 265, for example, there was a MOHE “Directorate General of Scholarship” record for a student, which recorded all matters relating to the student, including their course, and requests made to change course.[27]The Cultural Attache’s Office issues “letters of guarantee” for payments to universities, but only does so on the basis of a decision of the MOHE. An example letter of guarantee in the Bundle, p260, was signed by the Cultural Attache.[28]The Cultural Attache’s Office has a portal, called ASAS, which allows for communication between the students, the MOHE and the Cultural Attache’s Office.[29]Students file “e-requests” in that portal and their requests are decided by the MOHE and executed by the Cultural Attache’s Office.[30]The UK Cultural Attache’s Office’s role is therefore to forward students’ queries and applications to the DGS and to inform the students of the DGS’s decisions.[31]The Claimant was described as a “local employee” at clause 8 of her employment contract. .[32]The Claimant’s role was an office support one, performing administrative tasks and providing administrative support to the Cultural Attache’s Office. Day to day, her role involved updating databases regarding courses the students were studying, answering calls and emails from students who had various needs, and referring their particular queries to the Cultural Attache and, at times, to MOHE.[33]The Claimant would also answer general enquiries from students, such as where the student could find halal meat.[34]She would answer other student queries by telling them what the Respondent’s procedures required in the particular circumstances.[35]The Claimant dealt with students who wished to withdraw from a course or change course. Her role involved explaining the procedure to students: that they were required to had to apply directly to the MOHE, which would refer the request to the Scholarship Committee, which would make the decision. The Claimant also provided information to the MOHE on such requests, in answer to any MOHE queries.[36]If a student had not been accepted at the university for the subject in which the MOHE had authorised them to study, but the university had an offered a similar subject, the Claimant would forward the offer for the matched subject to the Head of department, Dr Al Suleimani, who would write to the MOHE for their approval.[37]The Claimant also sent academic transcripts (recording the student’s grades on graduating from high school) to universities. She responded to any queries from the Cultural Attache’s Office’s accounts department regarding payments to universities.[38]If a student had a conduct issue at a university, the Claimant would relay the issue to the Cultural Attache. 5 ph outcome jment and case mngmnt 1.5.14 version[39]The Claimant did not organise any cultural events in her role.[40]The Claimant’s email address in her role was an email address ‘@omanembassy’.[41]From 2016 the Cultural Attache had a Head of Academic Department, who would undertake the Cultural Attache’s tasks when she was absent. Financial guarantees first went through the Head of Department. After he approved them, they would be sent to the Cultural Attache for signature. Any official letters, including recommendations or other correspondence from the cultural office, were also reviewed and approved by him.[42]The Head of Department was responsible for evaluating employees and for approving leave requests, before these were officially sanctioned by the Cultural Attache. State Immunity Relevant Legal Provisions[43]Foreign states enjoy a general immunity from the jurisdiction of the courts in the UK, pursuant to the State Immunity Act 1978. By SIA 1978 s 1(1): 'A state is immune from the jurisdiction of the courts of the UK, except as provided in the following provisions of this Part of this Act'.[44]The Tribunal is required to give effect to state immunity even if the State does not appear in the proceedings, s1(2) State Immunity Act 1978.[45]Regarding employment claims, s4 SIA provides, “4 Contracts of employment. (1) A State is not immune as respects proceedings relating to a contract of employment between the State and an individual where the contract was made in the United Kingdom or the work is to be wholly or partly performed there. …”[46]Regarding diplomats and those employed by diplomatic missions, s16 SIA 1978 further provides, “16 Excluded matters. (1) This Part of this Act does not affect any immunity or privilege conferred by the Diplomatic Privileges Act 1964 or the Consular Relations Act 1968; and— (a) section 4 above does not apply to proceedings relating to a contract of employment between a State and an individual if the individual is or was employed under the contract as a diplomatic agent or consular officer; (aa) section 4 above does not apply to proceedings relating to a contract of employment between a State and an individual if the individual is or was employed under the contract as a member of a diplomatic mission (other than a diplomatic agent) or as a member of a consular post (other than a consular officer) and either— 6 ph outcome jment and case mngmnt 1.5.14 version (i) the State entered into the contract in the exercise of sovereign authority; or (ii) the State engaged in the conduct complained of in the exercise of sovereign authority;][47]These provisions of ss4 and 16 State Immunity Act 1978 are as amended by the State Immunity Act 1978 (Remedial) Order 2023, which came into force 23 February 2023.[48]The amendments were intended to give effect to the Supreme Court judgement in Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs; Secretary of State for Foreign and Commonwealth Affairs and Libya v Janah, [2018] IRLR 123, [2017] ICR 1327. In that case, the Supreme Court decided that the doctrine of state immunity in international law applied only sovereign acts, not private acts, of the foreign state concerned.[49]As a result of the amendments to s16 SIA, employees of a foreign Embassy in the UK are generally no longer be barred from bringing any type of employment claim against their employing State, so long as the employee is not a diplomatic agent or consular officer, or the employment was not entered into in the exercise of sovereign authority, or the conduct complained of was not an act of sovereign authority. Employment Entered into in the Exercise of Sovereign Authority[50]As stated, in Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs; Secretary of State for Commonwealth Affairs and Libya v Janah, [2018] IRLR 123, [2017] ICR 1327, the Supreme Court decided that the doctrine of state immunity in international law applied only sovereign acts, not private acts, of the foreign state concerned. “The rule of customary international law is that a state is entitled to immunity only in respect of acts done in the exercise of sovereign authority” [37].[51]Lord Sumption explained that the ‘restrictive doctrine’ of state immunity, which applies, is that, unless a countervailing customary international law rule can be established, a State is entitled to immunity before another State’s courts only in respect of conduct of a sovereign character, but not in respect of acts of a private law nature, as described by Lord Sumption at [8] [10], [17] Benkharbouche.[52]Whether the employment in a Mission is an act of sovereign authority will depend on the nature of the relationship between the parties, and this in turn will depend on the functions that the employee was employed to perform [54].[53]At [55] Lord Sumption distinguished between the three categories of embassy staff as follows: “The Vienna Convention on Diplomatic Relations divides the staff of a diplomatic mission into three broad categories:(i) diplomatic agents, ie the head of mission and the diplomatic staff;(ii) administrative and technical staff; and(iii) staff in the domestic service of the mission. Diplomatic agents participate in the functions of a diplomatic mission defined in article 3, principally representing the sending state, protecting the interests of the sending state and its nationals, negotiating with the government of the receiving state, ascertaining and reporting on developments in the receiving state and promoting friendly relations with the receiving state. These 7 ph outcome jment and case mngmnt 1.5.14 version functions are inherently governmental. They are exercises of sovereign authority. Every aspect of the employment of a diplomatic agent is therefore likely to be an exercise of sovereign authority. The role of technical and administrative staff is by comparison essentially ancillary and supportive. It may well be that the employment of some of them might also be exercises of sovereign authority if their functions are sufficiently close to the governmental functions of the mission. Cypher clerks might arguably be an example. Certain confidential secretarial staff might be another: see Governor of Pitcairn and Associated Islands v Sutton (1994) 104 ILR 508 (New Zealand Court of Appeal). However, I find it difficult to conceive of cases where the employment of purely domestic staff of a diplomatic mission could be anything other than an act jure gestionis. The employment of such staff is not inherently governmental. It is an act of a private law character such as anyone with the necessary resources might do.” Vienna Convention on Diplomatic Relations[54]Article 3 VCDR sets out the essential functions of a diplomatic mission. The performance of any of the Article 3 functions constitutes acts done in the exercise of sovereign authority. “Article 3 1. The functions of a diplomatic mission consist, inter alia, in:(a) Representing the sending State in the receiving State;(b) Protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law;(c) Negotiating with the Government of the receiving State;(d) Ascertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending State;(e) Promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations.” UK Appeal Decisions Following Benkharbouche[55]In Royal Embassy of Saudi Arabia v Al Hayali [2023] EAT 149 Bourne J, overturning the ET’s judgment, decided that the Claimant’s claims were barred by state immunity. He held, amongst other things: 55.1. A Tribunal must first establish whether the employer was performing sovereign functions: [90]. On the facts in that case, the work of the Academic and Cultural Affairs department aligned with the functions at Articles 3(1)(b) and (e) VCDR and so involved the exercise of sovereign authority: [91]. 55.2. Applying Benkharbouche SC [55], the test for section 16(1)(aa)(i) was whether the employee’s work was “sufficiently close” to the exercise of sovereign authority. That could be contrasted with work which was “purely collateral to the exercise of sovereign authority”: [92]-[93]. 8 ph outcome jment and case mngmnt 1.5.14 version 55.3. Comparisons with previous cases (such as Cudak v Lithuania (2010) 51 EHRR 15) may be of limited assistance depending on what is known about the facts of those cases: [94]-[95]. 55.4. Not all of an employee’s tasks have to meet the section 16(1)(aa)(i) test. It is sufficient if “some of the claimant’s activities throughout the period of her employment passed the test”: [96] –[97].[56]On the facts, although it was a “borderline and difficult case” [98], the “sufficiently close” test was met.[57]At [97] he said, “…in the context of what was an exercise of sovereign authority by the Embassy of a kind contemplated by the Vienna Convention, some of the Claimant’s activities throughout the period of her employment passed the [‘sufficiently close’] test. By sifting compliant and non-compliant guarantee requests, writing reports on funding requests and discussing art exhibits with visitors and British students and teachers, she played a part, even if only a small one, in protecting the interests of the Saudi state and its nationals in the UK and in promoting Saudi culture in the UK. To put it another way (reflecting French case law to which Lord Sumption referred in Benkharbouche at [56]), she was participating in the public service of the Embassy and not merely in the private administration of the Embassy.”[58]In Al Hayali EAT addressed the new wording of section 16(1)(aa) as inserted by the Remedial Order.[59]The Royal Embassy of Saudi Arabia (Cultural Bureau) v Costantine [2025] UKSC 9, also addressed the new wording of section 16(1)(aa) SIA.[60]Lord Lloyd-Jones, delivering the Judgment of the Court (with whom Lord Briggs, Lord Hamblen, Lord Leggatt and Lord Burnett agreed), approved paragraphs [54] and [55] of Benkharbouche, saying that the approach to immunity set out in them, “accurately reflects the position in international law” ([62] of Costantine).[61]Lord Lloyd-Jones in Costantine (at [61]) also specifically disapproved an observation of Browne-Wilkinson J, delivering the judgment of the EAT in Sengupta v Republic of India [1983] ICR 221, EAT, (at p 228 F-G) upon which the Appellant Embassy in the Supreme Court had relied in argument), that, “… when one looks to see what is involved in the performance of the applicant’s contract, it is clear that the performance of the contract is part of the discharge by the foreign state of its sovereign functions in which the applicant himself, at however lowly a level, is under the terms of his contract of employment necessarily engaged. One of the classic forms of sovereign acts by a foreign state is the representation of that state in a receiving state.”[62]At [61] Lord Lloyd-Jones observed that the decision in Sengupta had been expressly disapproved in Benkharbouche, on the ground that it took an over-expansive view of the range of acts relating to an embassy employee which could be described 9 ph outcome jment and case mngmnt 1.5.14 version as an exercise of sovereign authority. Lord Lloyd-Jones noted that Lord Sumption observed (at para 73) that Sengupta was decided at an early stage of the development of the law and that the test applied was far too wide.[63]At [62] Costantine, Lord Lloyd-Jones referred to the extensive citation of foreign authority in Benkharbouche at para [56] and said, “I would draw attention in particular to a line of authority in the European Court of Human Rights, all cases concerning the administrative and technical staff of diplomatic missions and cited with approval in Benkharbouche, where the test applied by the Strasbourg court was whether the functions for which the applicant was employed called for a personal involvement in the diplomatic or political operations of the mission, or only in such activities as might be carried on by private persons.”[64]Protecting and furthering the educational interests of a state’s citizens can only be the exercise of sovereign authority. In Holland v Lampen-Wolfe [2000] 1 WLR 1573 (HL), the House of Lords held that the provision of an educational programme to US personnel on a military base was an exercise of sovereign authority [1577E-F] [AB/64]. Acts of Sovereign Authority[65]In Benkharbouche Lord Sumption said, at paragraph [58], “58. … a state’s immunity under the restrictive doctrine may extend to some aspects of its treatment of its employees or potential employees which engage the state’s sovereign interests, even if the contract of employment itself was not entered into in the exercise of sovereign authority. Examples include claims arising out of an employee’s dismissal for reasons of state security. They may also include claims arising out of a state’s recruitment policy for civil servants or diplomatic or military employees, or claims for specific reinstatement after a dismissal, which in the nature of things impinge on the state's recruitment policy. …”.[66]In The Royal Embassy of Saudi Arabia (Cultural Bureau) v Costantine [2025] UKSC :Lord Lloyd-Jones said, at [76] “76. The appellant submits that the respondent’s complaints concern and would require investigation into sovereign decisions of the mission as to what work would be done, when and by whom. In particular, it is said that it would require investigation into why the respondent was not given any further work from May 2017 following the appointment of a new cultural attaché, the decision to transfer her back to the Administrative Affairs Department in the last week of September 2017 and the reasons for the decision to terminate her employment. These further submissions lack any substance. First, the respondent seeks compensation and a declaration. She does not seek reinstatement. The appellant’s right to decide who is employed at the mission is not restricted in any way by the claim. Secondly, the appellant has produced no evidence to support the suggestion that the treatment of the respondent engaged the State’s sovereign interests. There has been no accusation of wrongdoing on the part of the respondent. There has been no disciplinary investigation against her. There has been no suggestion that her dismissal was connected in any way with sovereign matters such as State security. 10 ph outcome jment and case mngmnt 1.5.14 version If the appellant were entitled to immunity in these circumstances, there would be such an entitlement in every case of dismissal of a member of the administrative staff of a mission.” Discussion and Decision Act of Sovereign Authority[67]In Benkharbouche, Lord Sumption indicated that state immunity could attach to certain acts of a state, even in private law employment - paras [57] & [58] Benkharbouche.[68]Lord Sumption gave examples of acts of sovereign authority in private law employment, such as claims arising out of an employee’s dismissal for reasons of state security. Claims arising out of a state’s recruitment policy for civil servants or diplomatic or military employees, or claims for specific reinstatement after a dismissal, which impinge on the state’s recruitment policy, can also attract state immunity. He also gave an example of the introduction of a no strike policy at a military base.[69]The Respondent contended that the Claimant’s dismissal was an act of sovereign authority because the Claimant agreed to all the terms of her contract, including clause 3, which provided that the Respondent was entitled to terminate the contract.[70]However, I did not accept that any contractual entitlement of the Respondent to dismiss the Claimant, under clause 3 of the contract, necessarily arose out of the State’s governmental policies at all. It was not explained, on the facts of this case, how the Claimant’s dismissal might have related to the state’s policies, including its recruitment policy.[71]There has been no suggestion that the Claimant’s dismissal was connected in any way with sovereign matters such as State security.[72]There were therefore no grounds on which I could find that the Claimant’s dismissal itself was an act of sovereign authority. Employment as an act of Sovereign Authority[73]The other ground on which the Respondent contended that state immunity barred the claim in this case was that the functions which the Claimant was employed to perform were sufficiently close to the governmental functions of the mission that her employment was an inherently sovereign or governmental act.[74]The Cultural Attache’s Office, in which the Claimant was engaged, dealt with students sponsored by Oman to study at UK universities. It acted as the interface between them and the Omani Ministry of Higher Education. It provided letters of guarantee for students to universities and relayed requests from students back to the MOHE.[75]I decided that the Cultural Attache’s Office functions appeared to involve at least the following governmental functions under the VCDR: 11 ph outcome jment and case mngmnt 1.5.14 version “(b) Protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law.” I made that decision because the Cultural Attache Office was responsible for furthering the educational interests of Oman’s citizens, as well as protecting the interests of the sending State in this regard. It was not in dispute that the Cultural Attache’s Office was part of the Mission of the State of Oman.[76]The correct test under international law for deciding whether the Claimant’s employment at the Cultural Attache Office was an act of sovereign authority was set out by Lord Sumption in [54] and [55] of Benkharbouche. The issue depends on the nature of the relationship between the parties, and this in turn will depend on the functions that the employee was employed to perform. Regarding administrative and technical staff, in particular, “The role of technical and administrative staff is by comparison essentially ancillary and supportive. It may well be that the employment of some of them might also be exercises of sovereign authority if their functions are sufficiently close to the governmental functions of the mission. Cypher clerks might arguably be an example. Certain confidential secretarial staff might be another”.[77]This was reiterated in Royal Embassy of Saudi Arabia (Cultural Bureau) v Costantine [2025] UKSC 9. At [62] Costantine, Lord Lloyd-Jones said, “I would draw attention in particular to a line of authority in the European Court of Human Rights, all cases concerning the administrative and technical staff of diplomatic missions and cited with approval in Benkharbouche, where the test applied by the Strasbourg court was whether the functions for which the applicant was employed called for a personal involvement in the diplomatic or political operations of the mission, or only in such activities as might be carried on by private persons.”[78]Accordingly, Costantine reiterated the distinction between private acts and conduct of a sovereign character, as explained by Lord Sumption at [8] [10], [17], [54] and [55] of Benkharbouche.[79]For the purposes of this claim, the Claimant was employed, pursuant to her contract of employment as, a Senior Academic Advisor. While that job title might suggest some advisory or decision making capacity, on the facts, the Claimant did not have any advisory, or decision-making, functions. Her tasks were genuinely administrative and clerical.[80]Applying [54] and [55] of Benkharbouche, I decided that none of the Claimant’s functions were sufficiently close to the governmental functions of the Cultural Attache’s Office so as to be exercises of sovereign authority. I decided that her functions were truly ancillary to the governmental functions of the Mission - they were tasks of a private law nature, and not acts of a sovereign character.[81]Looking at each of her functions:[82]Providing administrative support to the Cultural Attache Office is a task which a private person would undertake in any office environment. 12 ph outcome jment and case mngmnt 1.5.14 version[83]Updating databases regarding courses the students were studying, answering calls and emails from students who had various needs, and referring their particular queries to the Cultural Attache and, at times, to MOHE. These tasks were clerical and administrative tasks, such as any person in private employment might undertake. The Claimant did not make any decisions on the queries raised by the student, but passed these on to others. She exercised no powers in this regard on behalf of the relevant governmental bodies.[84]The Claimant would answer general enquiries from students such as where the student could find halal meat. That was in the nature of a private act – the Claimant offered practical advice, involving no governmental knowledge.[85]She would answer other student queries by telling them what the Respondent’s procedures required in the particular circumstances. This involved the Claimant passing on information as to the content of existing policies, rather than devising the policies herself. It did not involve any governmental decision making, or authority.[86]The Claimant dealt with students who wished to withdraw from a course or change course. Her role involved explaining the procedure to students: that they were required to had to apply directly to the MOHE, which would refer the request to the Scholarship Committee, which would make the decision. The Claimant also provided information to the MOHE on such requests, in answer to any MOHE queries. Again, the Claimant exercised no governmental authority in this regard. Her role involved passing on information. This was a practical, administrative task, which was ancillary to the governmental functions of the bodies who did exercise sovereign authority by making the relevant decisions about students.[87]If a student had not been accepted at the university for the subject in which the MOHE had authorised them to study, but the university had an offered a similar subject, the Claimant would forward the offer for the matched subject to the Head of department, Dr Al Suleimani, who would write to the MOHE for their approval. This was a administrative task, passing on information to others, for their decision. Such a task is similar to administrative support tasks in private employment.[88]The Claimant also sent academic transcripts (recording the student’s grades on graduating from high school) to universities. This was a basic clerical task.[89]She responded to any queries from the Cultural Attache Office’s accounts department regarding payments to universities. This appeared to involve confirming facts, rather than any decision making.[90]If a student had a conduct issue at a university, the Claimant would relay the issue to the Cultural Attache. Again, this was administrative task, passing on information. Supplying information was ancillary to the decision-making of the person who did exercise sovereign authority in relation to students.[91]None of the functions which the Claimant exercised were therefore ‘sufficiently close’ to the governmental functions of the mission as to be acts of sovereign authority. 13 ph outcome jment and case mngmnt 1.5.14 version[92]I did not accept the Respondent’s submission that the Claimant’s email address ‘@omanembassy’ signified that her employment was close to the governmental functions of the mission. It was not in dispute that the Cultural Attache’s Office was part of the Mission and that the Claimant was employed by the Embassy. It was unsurprising and unremarkable that the Claimant had an email address at the domain of the place in which she worked.[93]I noted that the Claimant reported to the Cultural Attache. However, on the facts, her own functions did not go beyond providing administrative and clerical support to the Cultural Attache. She was not, for example, privy to secret information. There was no suggestion that the Claimant handled the Cultural Attache’s private correspondence. She was not a confidential secretary as in Governor of Pitcairn and Associated Islands v Sutton (1994) 104 ILR 508. Her reporting line did not alter the basic administrative and clerical nature of her role. Submission to the Jurisdiction[94]In the first claim, the Respondent presented a Response on 16 August 2024, asserting diplomatic immunity, but also: 94.1. applying for time to be extended for presentation of its Response; 94.2. applying to strike out the claim because it had not been actively pursued and/or that a fair hearing was no longer possible; 94.3. replying to the substantive allegations; and 94.4. challenging the remedy and compensation sought.[95]In preparation for the case management hearing in both claims, the Respondent filed a Case Management Agenda with both the first and second claim’s case numbers on it, p204-212, which addressed matters beyond state immunity, including: 95.1. Saying: “The First Respondent believes the second claim was dismissed as it was a duplication. However, if the Claimant is permitted to proceed with the second claim the First Respondent will request time to submit an ET3”; 95.2. Saying that the matters to be discussed at a further preliminary hearing included state immunity and judicial mediation; 95.3. Saying that exchange of documents should be electronic; 95.4. Stating that the final hearing should be before a Judge and Members; 95.5. Confirming the Respondent’s interest in, both, a Judicial Assessment and Judicial Mediation. Relevant Law – Submission to Jurisdiction[96]S2 State Immunity Act 1978 provides, “S2 Submission to jurisdiction(1) A State is not immune as respects proceedings in respect of which it has submitted to the jurisdiction of the courts of the United Kingdom. 14 ph outcome jment and case mngmnt 1.5.14 version(2) A State may submit after the dispute giving rise to the proceedings has arisen or by a prior written agreement; but a provision in any agreement that it is to be governed by the law of the United Kingdom is not to be regarded as a submission.(3) A State is deemed to have submitted— (a) if it has instituted the proceedings; or (b) subject to subsections (4) and (5) below, if it has intervened or taken any step in the proceedings.(4) Subsection (3)(b) above does not apply to intervention or any step taken for the purpose only of— (a) claiming immunity; or (b) asserting an interest in property in circumstances such that the State would have been entitled to immunity if the proceedings had been brought against it.(5) subsection (3)(b) above does not apply to any step taken by the State in ignorance of facts entitling it to immunity if those facts could not reasonably have been ascertained and immunity is claimed as soon as reasonably practicable.(6) A submission in respect of any proceedings extends to any appeal but not to any counterclaim unless it arises out of the same legal relationship or facts as the claim.(7) The head of a State's diplomatic mission in the United Kingdom, or the person for the time being performing his functions, shall be deemed to have authority to submit on behalf of the State in respect of any proceedings; and any person who has entered into a contract on behalf of and with the authority of a State shall be deemed to have authority to submit on its behalf in respect of proceedings arising out of the contract.”[97]State immunity will therefore be lost if the state submitted to the jurisdiction of the court in relation to particular proceedings, s2(1) SIA. A state will be deemed to have submitted to the jurisdiction if it has intervened or taken any step in the proceedings, s 2(3)(b) SIA, unless it has intervened or taken a step in the proceedings for the purpose only of claiming immunity, s 2(4)(a), or if a step was taken in ignorance of facts entitling it to immunity where those facts could not reasonably have been ascertained and immunity is claimed as soon as reasonably practicable, s 2(5).[98]S 2(7) SIA provides that the head of a state's diplomatic mission in the UK, or the person for the time being performing his functions, shall be deemed to have authority to submit on behalf of the state in respect of any proceedings.[99]In Kuwait Airways Corporation v Iraqi Airways Company and Republic of Iraq [1995] 1 Lloyd’s Rep 25, CA, the Court of Appeal considered the provisions of ss2(3) &(4) SIA 1978. LJ Nourse said, at p31, “What then is the effect of s. 2? Sub-section (3)(b) 'provides that a State (or state entity) is deemed to have submitted if it has intervened or taken any step in the proceedings. But that provision is expressed to be subject to sub-s. (4) which, by par. (a), states that it does not apply to intervention or any step taken for the purpose "only" of claiming immunity. The joint effect of those provisions is to presuppose an intervention or 15 ph outcome jment and case mngmnt 1.5.14 version step in the proceedings; the prima facie result of that is a deemed submission to the jurisdiction; but if the intervention or step is made or taken for the purpose only of claiming immunity, there is no submission. Moreover, and this is very important, there is no submission if what is done by the State or State entity does not amount to an intervention or step in the proceedings. In my view s. 2(4) is a relieving provision. It would apply if, for example, a defendant served a defence in which the only claim made was one of immunity. Usually the service of a defence would be the taking of a step in the proceedings. But if it was confined as in the example suggested, s. 2(4)(a) would relieve the defendant from the usual consequences. … “As a general test, I would respectfully adopt that suggested by Lord Denning M.R. in Eagle Star Insurance Co. Ltd. v. Yuval Insurance Co. Ltd. 6 : “What then is a 'step in the proceedings'? It has been discussed in several cases. On principle it is a step by which the defendant evinces an election to abide by the Court proceedings and waives his right to ask for an arbitration. Like any election, it must be an unequivocal act done with knowledge of the material circumstances.” After considering several authorities, the Master of the Rolls continued: “On those authorities, it seems to me that in order to deprive a defendant of his recourse to arbitration a 'step in the proceedings' must be one which impliedly affirms the correctness of the proceedings and the willingness of the defendant to go along with a determination by the Courts of law instead of arbitration.”” Decision – Submission to Jurisdiction[100]I decided that the Respondent had submitted to the jurisdiction in the first claim by presenting its ET3 Response in the terms that it did.[101]Usually the service of a substantive defence will amount to the taking of a step in the proceedings, per LJ Nourse in Kuwait Airways Corporation v Iraqi Airways Company and Republic of Iraq [1995] 1 Lloyd’s Rep 25, CA.[102]However, if, a respondent serves a response in which the only assertion made is one of immunity, s. 2(4)(a) SIA 1978 operates to ensure that the respondent is not treated as having submitted to the jurisdiction of the Tribunal by doing so, Kuwait Airways Corporation v Iraqi Airways Company and Republic of Iraq [1995] 1 Lloyd’s Rep 25, CA..[103]In this case the Respondent did not claim state immunity in its response at all.[104]Even if it had, I decided that the Respondent’s ET3 Response went beyond "only" claiming immunity.[105]I noted that it stated, amongst other things, it made assertions amounting to substantive defences to the Claimant’s claim. 16 ph outcome jment and case mngmnt 1.5.14 version[106]I decided that the Respondent’s ET3 Response went well beyond a step taken for the purpose "only" of claiming immunity under s2(4)(a) SIA 1978.[107]There was no evidence that the state was ignorant of facts entitling it to immunity. S2(5) SIA does not apply to relieve the consequences.[108]By asserting substantive defences to the claim, the Respondent impliedly affirmed the correctness of the proceedings and its willingness to go along with a determination by the Courts of the substantive claim, as Lord Denning MR described in Eagle Star Insurance Co. Ltd. v. Yuval Insurance Co. Ltd [1978] I Lloyd's Rep. 357 at p. 36.[109]I also decided that the Respondent had submitted to the jurisdiction by filing its case management agenda for both claims. Again, the case management agenda went significantly beyond simply asserting state immunity, or preparation for a preliminary hearing on state immunity alone. For example, it said that the Final Hearing should be before a Judge and Members and that preliminary hearings should address both state immunity and judicial mediation. Again, filing that case management agenda in both claims went beyond a step taken for the purpose "only" of claiming immunity under s2(4)(a) SIA 1978.[110]I therefore decided that the Respondent had submitted to the jurisdiction of the Tribunal with regard to both claims and that, therefore, it was not able to rely on ss4 & 16 State Immunity Act 1978 to defend the Claimant’s claim.
Conclusion
[111]In conclusion, the Claimant’s employment was not an act of sovereign authority, the acts complained of in the claims were not acts of sovereign authority and, in any event, the First Respondent submitted to the jurisdiction of the Tribunal in both claims. As a result, the claims are not barred by state immunity. It is not necessary for me to consider whether the Claimant’s personal injury claim is also not barred by state immunity under s5 SIA. Dated: 3 July 2025