Mr R Fatihi v The Government of the State of Kuwait: 2200046/2022
EMPLOYMENT TRIBUNALS
Case No 2200046/2022
Between
Mr R FatihiClaimantThe Government of the State of KuwaitRespondent
Before
Employment Judge BrownMr K Pal (instructed by Counsel) for claimantMr E Kemp (instructed by Counsel) for respondentDate 4 September 2024
JUDGMENT
[1]The correct Respondent is the Government of the State of Kuwait.[2]The Claimant’s functions were sufficiently close to governmental functions of the missions so that his employment was an exercise of[3]Accordingly, the Claimant’s claim is barred by state immunity and the Tribunal has no jurisdiction to consider it. His claim is dismissed.
REASONS
[1]By a claim form, presented on 6 January 2022, the Claimant brought complaints of (constructive) unfair dismissal, race, sex, age and marriage discrimination, equal pay and unlawful deductions from wages against the Respondent, who he named as the Embassy of the State of Kuwait.[2]The claim was served by the FCDO diplomatic channel on 14 June 2022. The Respondent had 2 months and 28 days from then to present a Response.[3]The Respondent presented a Response to the claims on 23 May 2023, asserting state immunity pursuant to ss1, 14 & 16 State Immunity Act 1978. It said that the correct identity of the Respondent is The Government of The State of Kuwait. 1 ph outcome jment and case mngmnt 1.5.14 version Immunity Issues in this Case[4]This Public Preliminary Hearing was listed to determine the issues of state immunity in the case.[5]The issues were: 5.1. Who is the correct Respondent? 5.2. Whether the Claimant’s claims are barred by State Immunity pursuant to s1 Statute Immunity Act 1978 (on the basis that the claim and/or the acts of which the Claimant complains therein arises out of an inherently sovereign or governmental act of the State of Kuwait – see paras. 53 to 55 of Benkharbouche): 5.2.1. What functions was the Claimant employed to perform? 5.2.2. Were the functions which the Claimant was employed to perform sufficiently close to the governmental functions of the mission that his employment was an inherently sovereign or governmental act? 5.2.3. Was the Claimant’s employment an exercise of sovereign authority so as to be barred by state immunity under international law?[6]At the start of this hearing, the Claimant confirmed that the correct Respondent is the Government of the State of Kuwait. This was no longer in dispute.[7]The parties were aware that other cases involving state immunity issues – for example, Royal Embassy of Saudi Arabia v Al Hayali [2023] EAT 149 and The Kingdom of Spain v Miss Lydia Lorenzo [2023] EAT 153 – had been given leave to appeal to the Court of Appeal. Neither party contended that this claim should be stayed pending the Court of Appeal judgment in those cases.[8]I heard evidence from the Claimant. I also heard evidence from Mrs Haneen Alanasri, who has been employed as an Academic Adviser and a Team Leader by the Respondent; and from Mr Mustafa Agbawy, who has been employed as an Academic Adviser and a Management Assistant by the Respondent.[9]Both parties made written and oral submissions. The hearing lasted for almost all of the 1 day allocation and I reserved my judgment.
Findings of Fact
[10]Having heard evidence, I found the following facts:[11]The Claimant is a dual Moroccan and British citizen. He started employment at the Cultural Office of the Kuwaiti Embassy as an Academic Adviser on 15 June 2014.[12]Part of the Cultural Office’s function was to deal with students who had received scholarships from the Kuwaiti Government to study for degrees in the UK. The Kuwaiti Government assisted with the financing of Kuwaiti students at UK universities. 2 ph outcome jment and case mngmnt 1.5.14 version[13]In the Claimant’s role as Academic Adviser, he acted as a point of contact for students, providing them with information they needed to access support. He also gathered and processed documents and information from students and passed these documents to more senior officials at the Embassy for decision-making.[14]The Claimant reported to a Team Leader, who reported to a Head of Department, who reported to the attaché, and finally to the Head of Office.[15]From 2016, the Claimant used a computer system called the Kuwait Students Information Management System (“KSIMS”). He was able to access data for the students assigned to him on the system. The information was primarily academic information (e.g. the student’s academic/IELTS grades, university offer, etc), and a copy of the student’s passport. The student would input their bank details on the system. The Claimant would occasionally input information onto the system if the student had a problem accessing it or uploading information to it.[16]After a student was accepted into a university, the university would require financial guarantee letters from the Cultural Office. The Claimant would insert the correct reference code, dates, course name, student name and university name into a template document, print the document and pass it on to his Team Leader, who would initial and stamp the documents to confirm that they had been checked. The documents would then go to the Head of Office or the attaché, who would sign the letters and send them directly to the admissions department of the relevant university. The Claimant had initially checked that all the documents and details were correct.[17]The Claimant assisted with processing students’ requests for allowances. He would print a memo for his team leader to check and send to the Cultural Office’s accountants.[18]He assisted with processing universities’ tuition fee invoices – he would check they were genuine and matched the course and student. He would then print the relevant documents and pass them to his team leader for further checking and sending to the accountants.[19]The Claimant monitored student attendance, sending template warning letters if he received data from a university indicating that a student’s attendance was below 70%. The Respondent had a procedure that such warning letters were sent if attendance dropped below 70%.[20]He was involved in the approval of student holiday requests. If the holiday request was for the university holidays, he would approve the request, because it complied with a procedure which allowed holidays during holiday time.[21]The Claimant presented students’ requests for course changes at internal meetings. If the requests were approved by senior staff members at the meetings, the Claimant would inform the relevant students.[22]The Claimant went to York University in March 2017 on behalf of the Kuwait Cultural Office (“KCO”), to represent it in resolving a dispute between some 3 ph outcome jment and case mngmnt 1.5.14 version Kuwaiti students at York University and the University. During this visit, the Claimant met the Academic Director, Director of Student Services and the Director of Academic Support. The Claimant was required type a report of this trip and submit it to the Head of the KCO, who then wrote his own report and sent it to the Ministry of Education.[23]During summer 2017, the Claimant went to Kuwait for 2 weeks as a representative of the KCO, to explain to students how to apply to UK universities and answer questions about the UK university system.[24]The Claimant had access to students’ personal and medical information, including some members of the Royal Family who were assigned to him.[25]The Claimant had access to his students’ medical information to help him prioritise the evacuation of the most vulnerable students at the start of the Covid-19 pandemic. State Immunity Relevant Legal Provisions[26]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'.[27]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.[28]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. …”[29]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— 4 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;][30]Employees of a Diplomatic/Consular Mission in the UK are therefore not barred by s16 SIA from bringing any type of employment claim against their employing State, so long as: 30.1. the employee is not a diplomatic agent or consular officer, or 30.2. the employment was not entered into in the exercise of sovereign authority, or 30.3. the alleged unlawful conduct complained of was not an act of[31]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.[32]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.[33]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[34]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].[35]Whether there has been such an act 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].[36]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 5 ph outcome jment and case mngmnt 1.5.14 version 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 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.” Acts Engaging Sovereign Interests[37]However, Lord Sumption also cautioned that the character of the employment would not always be decisive. At [58], he made clear that state immunity may extend to some aspects of its treatment of its 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 and the introduction of a no-strike clause for civilian staff at a US military base in Canada, which had been deemed to be essential to the military efficiency of the base. Vienna Convention on Diplomatic Relations[38]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 “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 Decision Following Benkharbouche 6 ph outcome jment and case mngmnt 1.5.14 version[39]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: 39.1. 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]. 39.2. 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]. 39.3. 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]. 39.4. 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].[40]On the facts, although it was a “borderline and difficult case” [98], the “sufficiently close” test was met.[41]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.”[42]Alyahali EAT directly addressed the new wording of section 16(1)(aa) as inserted by the Remedial Order.[43]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]. Discussion and Decision[44]The Respondent did in not contend, in this case, that the alleged unlawful conduct complained of was an act of sovereign authority. The state immunity issue in this case was therefore confined to whether the functions which the Claimant was 7 ph outcome jment and case mngmnt 1.5.14 version employed to perform were sufficiently close to the governmental functions of the mission that his employment was an inherently sovereign or governmental act.[45]It was common ground between the parties that the KCO’s work, in which the Claimant was engaged, involved the following functions under the VCDR: “(b) Protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law;” and “(e) Promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations.”[46]The issue for me was therefore whether “some of the claimant’s activities throughout the period of his employment” were sufficiently close to the governmental functions of the mission that his employment was an inherently sovereign or governmental act - Royal Embassy of Saudi Arabia v Al Hayali [2023] EAT 149.[47]While Royal Embassy of Saudi Arabia v Al Hayali [2023] EAT 149 indicated that comparisons with other cases may be of limited assistance, Al Hayali itself concerned the analogous work of the Royal Embassy of Saudi Arabia’s Academic and Cultural Affairs departments, looking after the interests of Saudi students in the UK and promoting Saudi academic and artistic work.[48]Bourne J decided that “sifting compliant and non-compliant guarantee requests, writing reports on funding requests” involved playing a small part in protecting the interests of the Saudi state and its nationals in the UK, so that those functions were sufficiently close to the governmental functions of the mission that his employment was an inherently sovereign or governmental act.[49]Many of the Claimant’s activities in the present case involved collating documents and carrying out preliminary compliance sifts in relation to guarantee letters, allowance requests and the like. He was a preliminary “gate-keeper” in this regard, through which applications and requests passed. He checked that documents were compliant with process, but had almost no final decision-making authority. His only “final” decision-making functions involved approving holiday requests which complied with a rule which permitted holidays to be taken during university holiday periods and sending template warning letters when a student’s attendance dropped below 70%. He had no discretion, in either case, to act otherwise.[50]While I, myself, would be inclined to conclude that the Claimant’s activities, in collating documents and carrying out preliminary compliance sifts in relation to such letters and applications, and passing them on for other, more senior officers’, approval, was essentially ancillary and supportive to the governmental functions of the mission and distant from the governmental functions of the mission, the EAT in Al Hayali appears to have decided differently.[51]There appears to be a tension between Lord Sumption’s broad statement in Benkharbouche that, “The role of technical and administrative staff is by comparison essentially ancillary and supportive … 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…” [emphasis supplied] and the much more swingeing application of state immunity to administrative staff by Bourne J in the EAT. Bourne J has excluded administrative staff from sovereign immunity only where their 8 ph outcome jment and case mngmnt 1.5.14 version functions are “purely collateral to the exercise of sovereign authority”. I am bound by the EAT’s explanation of Benkharbouche, even if I myself doubt whether the “purely collateral” test is consistent with Lord Sumption’s statement at [55] of Benkharbouche, or with the ‘restrictive doctrine’ of state immunity which 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 (acts jure imperii), but not in respect of acts of a private law nature (acts jure gestionis) ([8], as described by Lord Sumption at [8] [10], [17] Benkharbouche.[52]As I am bound by the EAT’s explanation of the application of Benkharbouche, I therefore conclude, following Bourne J in Al Hayali, that the Claimant’s functions in sifting letters of guarantee, invoices and applications for allowances, and carrying out preliminary checks on such matters, was a part of the sovereign functions of the mission and therefore an exercise of sovereign authority.[53]In respect of the Claimant’s trips to York and Kuwait, I consider that these really were more in the nature of governmental acts. In the case of the York University trip, the Claimant represented the Cultural Office in meetings with the University’s senior officers and produced a report on his visit for the Head of the KCO.[54]I agreed with the Respondent that this was a public-facing function, on behalf of the Embassy. It involved the Claimant himself “(e) Promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations.” I considered that the Claimant was, on this occasion, carrying out an inherently sovereign function of the mission.[55]Further, during summer 2017, when the Claimant went to Kuwait for 2 weeks as a representative of the KCO, explaining to students how to apply to UK universities, this was a publicly facing role, advertising work of KCO to Kuwaiti students and their families. His role in this regard was not simply a private law administrative task.[56]I considered that, on this engagement, the Claimant was representing the Mission and was himself carrying out the functions of the Mission “(b) Protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law.”[57]In these 2 trips, his functions were sufficiently close to governmental functions of the missions so that his employment was an exercise of sovereign authority.[58]Given that at least some of the Claimant’s functions during his employment were sufficiently close to the VCDR governmental functions of the Mission, the Claimant’s claim is barred by state immunity and the Tribunal has no jurisdiction to consider it. His claim is dismissed.