Ms A Alhayali v The Royal Saudi Embassy in London: 2200303/2018
EMPLOYMENT TRIBUNALS
Case No 2200303/2018
Between
Ms A AlhayaliClaimantThe Royal Saudi Embassy in LondonRespondent
Before
Employment Judge BrownDate 7 January 2022
JUDGMENT
The complaints of unfair dismissal, unlawful deductions from wages and breach of contract are dismissed following a withdrawal by the claimant. The claimant’s remaining claim(s) will proceed to hearing on 1- 5 & 8 June 2020. JUDGMENT AT AN OPEN PRELIMINARY HEARING The judgment of the Tribunal is that:[1]The Respondent submitted to the jurisdiction of the Tribunal in respect of the Claimant’s EU law – derived claims.[2]Claimant’s employment was not an exercise of sovereign authority. Throughout her employment, her job functions were not exercises of sovereign authority, but were ancillary and supportive administrative functions.[3]The Respondent therefore does not have the benefit of state immunity in relation to the Claimants’ European law claims, which can proceed to a Final Hearing.[4]In any event, the Claimant has brought a claim for personal injury in her discrimination claims. The Respondent does not have state immunity in respect of her personal injury claim.[5]The Final Hearing due to start 21 February 2022 shall deal with liability only. 1 ph outcome jment and case mngmnt 1.5.14 version
REASONS
[1]This Hearing was listed to determine: 1.1. Whether the Respondent submitted to the jurisdiction of the Tribunal, by its letter of 9 April 2019, or by taking any steps in the proceedings between that date and 4 August 2021 ; 1.2. Whether the Respondent has the benefit of state immunity, in particular; 1.3. Whether the Claimant’s employment was an act of a private law nature, in that she was employed as a member of the Mission’s administrative and technical staff, whose functions were truly ancillary and supportive, or 1.4. Whether the Claimant’s employment was an act of sovereign authority.[2]At the start of the hearing Ms Darwin, for the Respondent, noted that the Claimant’s skeleton argument contained submissions on state immunity and personal injury claims. She said that whether the Claimant had brought a personal injury claim and whether the Respondent had the benefit of state immunity in relation to such a claim had not previously been identified as issues for this hearing. Ms Darwin said that the Respondent was not in a position to deal with those issues.[3]I said that these issues are relevant to the Tribunal’s jurisdiction to hear claims in which state immunity arises and that it would be in accordance with the overriding objective for these issues to be dealt with during this Hearing. They would be matters for submission rather than evidence. I gave the Respondent additional time, until 6 December 2021, to respond to the Claimant’s contentions on personal injury, in writing. I gave the Claimant until 7 December 2021 to reply to the Respondent’s written submissions. The parties were content with this course.[4]The Respondent sought permission to add documents to the Bundle which had been disclosed, late, on 25 November 2021. The Claimant objected to their inclusion, noting that some documents had been redacted and were in Arabic, and translations for them had not been agreed. Ms Stanley, the Claimant’s Counsel, does not speak Arabic and could not understand the documents. The Claimant said that, if the documents were directly relevant to the Claimant’s work, they should have been disclosed much earlier. She said that the documents were selective and partial email communications and that the full course of correspondence had not been disclosed.[5]Ms Darwin for the Respondent did not dispute that the new documents were partial disclosure. She said that the Respondent was nevertheless keen for the Tribunal to see some of the correspondence in which the Claimant had been included.[6]I said that it would not be fair, or in accordance with the overriding objective, for the documents to be admitted in evidence. The documents were in Arabic and there was no agreed translation of them. The Tribunal could not be sure what they said. Some were redacted, with no explanation for the redactions. The true meaning of the remaining text was not certain. The documents had been disclosed late, which had not put the parties on an equal footing. The documents represented partial disclosure only and the Tribunal could not rely on them as an accurate 2 ph outcome jment and case mngmnt 1.5.14 version representation of the communications to which the Claimant was a party. Ultimately, the Tribunal could not rely on them in coming to a fair decision.[7]The Claimant pursues complaints of direct religion and belief discrimination, direct disability discrimination, discrimination arising from disability, harassment related to sex and harassment related to religion, victimization and unpaid holiday pay.[8]She relies on depression in her disability discrimination claim. In her victimization claim, she relies on the matters set out in paragraphs 13, 20, 31 and 32 of her amended grounds of claim as her protected acts.[9]The Claimant has withdrawn her domestic law claims; unfair dismissal, unlawful deductions from wages and breach of contract.[10]The background to this hearing is set out in the records of previous Telephone Preliminary Hearings on 8 and 20 October 2021.[11]The Respondent contends that the Respondent cannot have submitted to the jurisdiction of the courts of the United Kingdom because no one competent to submit on behalf of the Respondent has done so. It contends that the Claimant was a member of its administrative staff, but that her functions were sufficiently close to the governmental functions of the mission so that her employment involved the exercise of an inherently sovereign or governmental act and, accordingly, all her claims are barred by state immunity.[12]The Claimant, on the other hand, contends that state immunity does not apply to her employment and that, in any event, by its emails to the Tribunal of 9 April 2019 and other correspondence thereafter, the Respondent expressly submitted to the jurisdiction of the Tribunal in respect of the Claimant’s claims based on EU law. She also says that, in any event, she brings a personal injury claim, which is not barred by state immunity.[13]The Claimant gave evidence at this Preliminary Hearing.[14]For the Respondent, I heard evidence from Amel Trabelsi, “Student Compliance Advisor" in the Students Guidance and Social Affairs Department of the Cultural Bureau. Ms Trabelsi gave evidence in relation to the Respondent’s instruction of its solicitors in these proceedings.[15]After the Claimant and Ms Trabelsi had given evidence, the Respondent asked for permission to adduce in evidence further correspondence between the Respondent’s solicitor Ms Murray-Hinde and Dr Abdulbari Altamni, Head of Legal Affairs, who came to the Cultural Bureau in 2020.[16]The Claimant objected to the new evidence. I was told that the new documents were emails from Dr Abdulbari Altamni in which he expressed his view on the immunity issue, in March and August 2021. I was told that these emails said that a further email from Ms Murray Hinde has been read – but that that email had not been disclosed.[17]The Respondent said that it had disclosed all relevant documents in its possession, but that it did not have the Howard Kennedy solicitors file. 3 ph outcome jment and case mngmnt 1.5.14 version[18]I decided not to admit the new emails. They represented a partial account only of the correspondence between the solicitors and Dr Abdulbari Altamni and had been disclosed halfway through the hearing, after Ms Trabelsi had given evidence. They would not assist the Tribunal to come to a fair or accurate judgment on the matters in dispute.[19]In relation to the Claimant’s job duties, I heard evidence from the following witnesses for the Respondent: Ms Malla Alshohaib, who had been employed as an Academic Supervisor in the Educational Affairs Department of the Cultural Bureau; and Mr Mohammed Alahdal, who had been employed as a Website Admin Supervisor in the Cultural Affairs Department of the Cultural Bureau from early 2013 until September 2017.[20]There was a Hearing Bundle and a Correspondence Bundle. Page references to the Hearing Bundle in these Reasons appear as [HB/X], and references to pages in the Correspondence Bundle appear as [CB/X].[21]Both parties made submissions. I reserved my decision. Issue: Submission to Jurisdiction
Findings of Fact
[22]On 30 January 2018 the Claimant presented her claim form. The claim was served by the Diplomatic Channel on 31 March 2019. The Respondent asserted state immunity under the State Immunity Act 1978.[23]At a Preliminary Hearing on 19 March 2019, the Claimant was permitted to present amended grounds of claim. At the same hearing, the Respondent was permitted to file amended grounds of resistance. The Respondent was ordered to make clear, in those grounds of resistance, whether it agreed that the Tribunal had jurisdiction over claims which are derived from the European Charter, following 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, SC, and whether , in principle, it was prepared to enter into a settlement discussions, with, or without, judicial mediation[24]On 9 April 2019 the Respondent’s solicitor, Sam Murray-Hinde, Partner, Howard Kennedy LLP, wrote to Tribunal in the following terms, “.. we confirm: 1. The Respondent does not consider it necessary to amend the Grounds of Resistance, but accepts the Tribunal has jurisdiction over claims which are derived from the EU law (as reflected in paragraph 8(c) of the existing Grounds of Resistance).,” CB/1.[25]Paragraph 8(c) of the existing Grounds of Resistance said this, “(c) Insofar as the Claimant seeks to rely on the case of Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs [2017] UKSC 62; [2017] 3 WLR 957 where, in relation to the SIA 1978, the Supreme Court made a declaration of incompatibility with Article 6 of the ECHR, it is averred that parliament has not acted to remove that incompatibility. The Supreme Court affirmed the Court of Appeal's decision to dis-apply the provisions of the SIA 1978 only to the extent they conflicted with EU law. The Claimant cannot therefore pursue her claims for unfair dismissal or 4 ph outcome jment and case mngmnt 1.5.14 version unlawful deductions from wages and/or breach of contract, as these are domestic claims and remain barred.”[26]The Respondent’s solicitors also indicated that it was not willing to enter into judicial mediation, CB/1.[27]On 25 April 2019 the Respondent’s solicitors declined the Claimant’s solicitors’ request for a fully particularised response, saying that the Respondent had only been ordered to confirm whether it agreed the Tribunal had jurisdiction over the EU claims, CB/5.[28]On 29 May 2019 the Respondent’s solicitors wrote to the Tribunal agreeing to the Claimant’s request that a telephone preliminary hearing be listed and responding to the Claimant’s application for a strike out and/or deposit order, CB/ 10 – 11.[29]Counsel appeared on behalf of the Respondent at a telephone preliminary hearing on 15 October 2019 and engaged in case management discussions, during which case management directions were given for final hearing.[30]On 20 December the Respondent’s solicitors filed Grounds of Resistance responding to the Claimant’s substantive allegations. The Respondent’s solicitors’ covering email said that they attached substantive Grounds of Resistance, CB/ 36 – 37.[31]On 3 January 2020 the Respondent’s solicitors requested further documents from the Claimant in relation to whether the Claimant was a disabled person at the material times, CB/40 – 41.[32]On 10 January 2020 the Respondent’s solicitors conceded that the Claimant was a disabled person from 12 June 2018, CB/45.[33]In emails between 13 – 20 January 2020 and 20 January 2020 the Respondent’s solicitors liaised with the Claimant on a list of issues, CB/47, 51, 53, 20 - 56. The parties’ agreed list of issues was sent to the ET on 20 January 2020 , HE/61.[34]On 7 February 2020 the Respondent’s solicitors provided the Claimant with disclosure in accordance with the Tribunal’s case management order, CB/62.[35]In emails between 21 February 2020 and 15 March 2020 the Respondent’s solicitors liaised with the Claimant’s solicitors concerning compilation of the Final Hearing bundle, CB/7S, 77, 82 and 87.[36]On 29 May 2020 the Respondent’s Counsel spoke to the Claimant’s solicitor, CB/100.[37]On 11 June 2020 the Respondent’s solicitors agreed with the Claimant’s solicitor to write to the Tribunal asking the Tribunal to approve agreed directions, CB/101 - 102 and the Respondent’s solicitors accordingly wrote to the Tribunal on 11 June 2020, CB/106.[38]On 18 June 2020 the Respondent’s solicitors wrote to the ET concerning the final hearing length, CB/105. 5 ph outcome jment and case mngmnt 1.5.14 version[39]In June and July 2020 the parties’ solicitors continued to correspond concerning the final hearing bundle, CB/108 - 113.[40]On 6 August 2020 the Respondent’s solicitors wrote to the Tribunal applying for an unless order, CB/120 – 121; and chased the process of this unless order with the Employment Tribunal on 12 October 2020, CB/118; and on 18 December 2020, CB/114.[41]The parties’ solicitors corresponded in relation to this application on various dates in October and December 2020, CB/115- 117.[42]On 18 February 2021 the Respondent’s solicitors made an application for the Claimant’ s claim to be struck out, CB/139.[43]The final hearing was relisted, because of the covid19 pandemic, for 8 days from 21 February 2022 to 2 March 2022.[44]On 4 August 2021 Howard Kennedy solicitors, then still on record as the Respondent’s solicitors, made an application that the final hearing be vacated. The application said, “our client is reasserting state immunity in these proceedings and we are instructed to engage for this purpose only.”[45]The Respondent concedes that the email from Howard Kennedy of 9 April 2019 purported to submit to the jurisdiction. It also concedes that a step or steps have been taken in the proceedings, including the presentation of an Amended Grounds of Resistance.[46]Ms Trabelsi, who gave evidence for the Respondent, told me, and I accepted, that she has no legal qualifications in the UK and has never worked in a law firm, nor had she had any experience of any legal proceedings in the United Kingdom until the Claimant brought her claim.[47]Ms Trabelsi is not a diplomat.[48]Ms Trabelsi told me that she does not have, and has never had, any authority to make any decisions about any affairs (whether legal or other) of the Cultural Bureau, or Embassy, or any of its staff.[49]Ms Trabelsi’s job as a Student Compliance Adviser involves providing support and advice to students from Saudi Arabia who are studying, or are hoping to study, in the United Kingdom.[50]Ms Trabelsi told me that she became aware of the Claimant’s Employment Tribunal claim when Mr AdbuI-Aziz Almagushi, the Cultural Attaché at that time, introduced her to Sam Murray- Hinde, a partner at Howard Kennedy, at an inperson meeting in 2018. That meeting was attended by Ms Murray-Hinde, the Attaché and Ms Trabelsi.[51]I accepted Ms Trabelsi’s evidence on this[52]Ms Trabelsi told the Tribunal that the sole direction given to Howard Kennedy by the Attaché at that meeting was to claim state immunity. The Attaché told Ms Trabelsi that Howard Kennedy would be the lawyers running this case on behalf of 6 ph outcome jment and case mngmnt 1.5.14 version the Cultural Bureau and that Ms Trabelsi should give Ms Murray-Hinde whatever information she needed. The Attaché said something along the lines of, “if Sam at Howard Kennedy wants any information, for example any documents, the employment contract, translating any document from Arabic to English etc., or information about the case is needed, then can you give it."[53]I accepted Ms Trabelsi’s evidence that the Attaché told Ms Trabelsi to provide any information or documents requested by Howard Kennedy. I also accepted her evidence that the Attaché’s instructions, in that meeting, were to assert state immunity in relation to the Claimant’s claim.[54]However, Ms Trabelsi agreed in evidence that she could not say what else might have been stated between the Attaché and Ms Murray-Hinde. Ms Trabelsi told me that the Attaché did not speak English, but I was not satisfied that there were no other communications between the Attaché and Ms Murray-Hinde. The meeting in 2018 must have been arranged without Ms Trabelsi’s involvement, for example.[55]Ms Trabelsi told the Tribunal that she did not know whether Mr AdbuI-Aziz Almagushi, the Cultural Attaché, spoke to the Ambassador, or his deputy, about this case.[56]Ms Trabelsi told me, “I am not in a position to give authority or submit to jurisdiction. Only the Ambassador (who is the Head of the Mission, at that time H.R.H Mohammed bin Nawwaf bin Abdulaziz) can do that.” She told me that she has never met any of the Ambassadors of the Kingdom of Saudi Arabia to the UK, nor emailed them.[57]Ms Trabelsi told the Tribunal that she was never ever given any authority from Attaché, or anyone at the Cultural Bureau, to submit to jurisdiction or to give instructions on that regard. Ms Trabelsi told me that her own role was solely to provide information which Ms Murray-Hinde needed and to process the firm’s fees invoices.[58]Ms Trabelsi told the Tribunal that she believed she had been chosen to liaise with Ms Murray-Hinde to provide information because Ms Trabelsi speaks Arabic and English.[59]Ms Trabelsi told the Tribunal that she did not give instructions to Ms Murray-Hinde and did not realise, at any point, that she was being asked to make decisions about the progress of the case. Ms Trabelsi said that authority to give instructions was never discussed between Ms Murray-Hinde and her.[60]Ms Trabelsi also told the Tribunal that she was the only person at the Cultural Bureau communicating with Ms Murray-Hinde. She said that she occasionally updated the Attaché about the conduct of the case.[61]The Howard Kennedy file was not disclosed to the Tribunal. The Respondent disclosed the email correspondence which it retained in which written instructions had been given to Howard Kennedy. These did not constitute the full file. For example, the file would have been likely to have contained correspondence from Howard Kennedy confirming their initial instructions, and who had given those instructions. It would also have been likely to contain a record of the in-person meeting in 2018. 7 ph outcome jment and case mngmnt 1.5.14 version[62]On 8 April 2019, Ms Murray-Hinde emailed Ms Trabelsi saying, ‘ As you know, the orders made at the Preliminary Hearing on 19 March 2019 required a response from us on or by 9 April 2019. In short, we need to confirm the following: 1. Whether we wish to file an amended response in relation to jurisdictional points, and/or of the SACB’s standing within the Embassy - my view is that we do not need to do so and we can simply confirm this. 2. SACB’s position re mediation. As I previously advised judicial mediation would come at a cost. At this time, we do not know whether any of the Claimants will stay all of their claims, or opt to pursue only the discrimination ones…, ', HB/291.[63]Ms Trabelsi told the Tribunal, “I did not discuss this email or its content with anyone in the Cultural Bureau. I said that to go ahead and do so as I thought she meant to confirm the original default position of immunity”.[64]Ms Trabelsi nevertheless replied saying, “We agree with your point 1 and point 2 so please go ahead.” HB, p290.[65]Ms Trabelsi told the Tribunal that Ms Murray-Hinde had not explained to Ms Trabelsi the legal implications about submission to jurisdiction and that Ms Trabelsi did not know what this meant. She said that she replied under pressure of time.[66]I found Ms Trabelsi’s evidence to be unreliable regarding the emails of 8 and 9 April and regarding Mr Trabelsi’s role in providing instructions to Ms Murray-Hinde.[67]While Ms Trabelsi insisted that she was not providing instructions and did not understand that she was being asked to do so, Ms Murray-Hinde’s 8 April 2019 email asked, in plain English, for authorization to take particular steps in the proceedings. Ms Trabelsi’s response, saying “We agree” indicated that she had considered and decided on the correct course to take in the proceedings.[68]I considered that the emails disclosed by the Respondent were clearly not a full account of the advice and other communications between Ms Murray-Hinde and Ms Trabelsi, or others at the Respondent. Ms Murray-Hinde’s email started with, “As you know the orders made at the Preliminary Hearing on 19 March required a response from us on or by 9 April 2019.” Ms Murray-Hinde had clearly previously communicated with Ms Trabelsi about the hearing on 19 March and the requirement for the Respondent to provide an answer on the points arising from Benkharbouche.[69]It was clear from Ms Murray-Hinde’s email, that Ms Murray-Hinde had previously given legal advice about mediation and had discussed the distinction between discrimination and other claims (“At this time, we do not know whether any of the Claimants will stay all of their claims, or opt to pursue only the discrimination ones…, “) and that Ms Murray-Hinde understood that Ms Trabelsi was aware of this.[70]Ms Trabelsi’s evidence was wholly at odds with this – but it was noticeable that Ms Trabelsi never questioned Ms Murray-Hinde’s understanding, whether in Ms Trabelsi’s immediate reply or at any point thereafter.[71]In her reply Ms Trabelsi said, “We agree with your point 1 and 2”. I considered that it was notable that Ms Trabelsi, who told the Tribunal that she speaks English and 8 ph outcome jment and case mngmnt 1.5.14 version Arabic, used the word “we” and not “I”. Her own words indicated that she was not speaking simply on her own behalf.[72]On 9 April 2019 Ms Murray-Hinde wrote again to Ms Trabelsi, copying in “Alaa AlAlem”. She said, “Thank you for confirming your instructions yesterday. I have this morning emailed the Tribunal in each of the four Tribunal claims to confirm that(1) the SACB accepts the claimants can pursue claims deriving from EU-law, and(2) that the SACB is not minded to consider settlement at this time.” HB/294.[73]Ms Trabelsi did not reply, questioning Ms Murray-Hinde’s email.[74]I considered that Ms Murray-Hinde made clear that she considered that Ms Trabelsi had given instructions and that the Respondent had accepted that the Claimants could pursue EU-law derived claims. Her email was in clear terms. I did not accept Ms Trabelsi’s evidence that she never gave instructions and that she did not understand the legal implications of the instructions she gave.[75]In a further email to Ms Trabelsi and Alaa Al-Alem on 24 April 2019, Ms MurrayHinde advised that the Respondent did not yet have to submit a full response to the Claimant’s EU-derived claims, HB/297. Ms Trabelsi never queried Ms MurrayHinde’s advice regarding the EU-derived claims, or said that she did not understand what Ms Murray-Hinde was talking about.[76]On 23 May 2019 Ms Trabelsi wrote to Ms Murray-Hinde saying, “Ms Alhayali. I can confirm that we are happy to respond to her solicitors and the Tribunal requesting an hour telephone hearing at which you can agree on case management orders. I believe that your suggestion concerning the strikeout/deposit order is appropriate.” HB/304.[77]Ms Trabelsi told the Tribunal that Dr Abdulbari Altamni, who is Head of Legal Affairs, came to the Cultural Bureau in early 2020. She said that he learned that the Respondent had purported to agree that the Tribunal had jurisdiction over the Claimant’s EU law claims and had challenged this.[78]Dr Altmani did not give evidence to the Tribunal. As stated above, on 6 August 2020 the Respondent’s solicitors wrote to the Tribunal applying for an unless order, CB/120 – 121; and chased the process of this unless order with the Employment Tribunal on 12 October 2020, CB/118; and on 18 December 2020, CB/114.[79]The Respondent did not challenge its apparent submission to jurisdiction until August 2021.[80]Mr AdbuI-Aziz Almagushi, the Cultural Attaché, who introduced Ms Trabelsi to Ms Murray-Hinde, did not give evidence.[81]Alaa Al-Alem, who was also copied into the email correspondence, did not give evidence either.[82]For the purposes of this Open Preliminary Hearing I was provided with a statement which was not signed by any individual but was stamped with an Embassy stamp. It said, 9 ph outcome jment and case mngmnt 1.5.14 version “The Embassy provides this statement for the sole purpose of asserting state immunity. The Embassy hereby confirms that the Ambassador (including His Excellency Mohammed bin Nawwaf bin Abdulaziz for the period from 2007 to 2019, and His Excellency Khalid bin Bandar Al Saud for the period from 2019 to present) is the only person authorized by the Saudi Government to waive any immunity including state immunity. This applied in 2019, at the time the email dated 9 April 2019 was purportedly sent by Howard Kennedy on behalf of the Royal Embassy of Saudi Arabia (Cultural Bureau). Neither the Ambassador nor anyone working on his behalf has waived state immunity with respect to the ongoing proceedings between Ms Alhayali and the Cultural Bureau. Moreover, neither the Ambassador nor any one working on his behalf has given authority to Ms Amel Trabelsi or anyone at the Cultural Bureau to waive state immunity in the above matter. The Royal Embassy of Saudi Arabia does not waive any privileges or immunities in this statement, nor does it submit to the court’s jurisdiction in the above matter. Royal Embassy of Saudi Arabia”[83]Neither the Ambassador nor his Deputy gave evidence to the Tribunal. Relevant Law – Submission to Jurisdiction[84]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.(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. 10 ph outcome jment and case mngmnt 1.5.14 version(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.”[85]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).[86]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.[87]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 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.”[88]In Republic of Yemen v Aziz [2005] ICR 1391 CA the Court of Appeal considered. was whether the embassy had submitted to the jurisdiction of the tribunal by virtue of the acts of its solicitors in lodging a notice of appearance in which they stated that the respondents intended to resist the claim, and in subsequently amending it. Pill LJ (with whom Sedley and Gage JJ agreed) held: 11 ph outcome jment and case mngmnt 1.5.14 version[89](1) By virtue of s 1(2) effect must be given to the s 1(1) immunity, even though the state does not appear in the proceedings. This means that a court or tribunal has a duty to enquire, not only as to whether a state has submitted to the jurisdiction under s2, but, where a party to proceedings may be a state, as to whether it has that status within the meaning of the Act, even though the party may not be present [60].[90](2) Where it is claimed that there has been a waiver of immunity, or a question arises as to the status of the entity claiming to be an emanation of the state, the court or tribunal should scrutinise the available evidence. In either case, the evidence of the ambassador, as representative of the state, is important but not necessarily conclusive evidence of the relevant matters [51].[91](3) Where it is claimed that a step has been taken in the proceedings under s 2(3)(b), action taken by a member of the diplomatic mission, or solicitors instructed by the mission, must be taken with the authority of the head of the mission or the person for the time being performing the functions of the head of the mission [55].[92](4) The head of the mission has deemed authority to submit to the jurisdiction under s 2(7), and this includes the authority to delegate. If the head of the mission authorises a member of the mission, or solicitors instructed by the mission, to submit, the action taken by such person is the action of the state, within the meaning of s 2. The head of the mission does not need the specific instructions of his government to confer such authority [55].[93](5) A step taken by solicitors instructed by the mission cannot constitute a waiver of immunity unless they have been authorised to take it, either directly by the head of the mission or indirectly by a member of the mission who has been authorised by the head of the mission to do so [56].[94](6) The doctrine of ostensible authority does not apply either to solicitors instructed by the mission or to a member of the mission (other than the head or acting head of the mission), nor can jurisdiction be created by an estoppel [53, 58].[95](7) Where there is a factual issue as to whether there has been a waiver of immunity under s 2, it is open to the fact-finding tribunal, in determining that issue, to infer from all the circumstances that a member of the mission, or solicitors instructed by the mission, acted with the necessary authority [58].[96](8) Where state immunity is claimed in appellate proceedings, the court or tribunal may consider evidence called to substantiate the claim because, if substantiated, the court or tribunal below had no jurisdiction to hear the case [51].[97]The requirement for authority from the head of a State’s diplomatic mission to submit to the jurisdiction applies both to an actual submission and a deemed submission pursuant to s.2(3) of the 1978 Act, Arab Republic of Egypt v GamalEldin [1996] ICR 13 at [21]. Accordingly, a director of a medical office attached to a mission did not have authority to submit to the jurisdiction on behalf of his state.[98]In Baccus SRL v Servicio Nacional del Trigo [1957] 1QB 438 at 474, Parker LJ said, 12 ph outcome jment and case mngmnt 1.5.14 version "In those circumstances it does seem to me that it requires some solemn act of the foreign sovereign to bring to life something which is otherwise completely dead; and, without referring to the cases, I think that The Jassy and the case before Astbury J., In re Republic of Bolivia Exploration Syndicate Ltd. , support that view. So far as this case is concerned, it is true that we have not had the benefit of an affidavit from Senor Cavero, but for my part I cannot impute to him knowledge of the effect of entering an unconditional appearance. Quite apart from that, it seems to me that the evidence is clear that although he is the person, the intermediary, to pass on instructions to English solicitors to deal with a case in England. he is bound to consult the appropriate minister as to whether sovereign immunity should be waived or not. It is true this does open up the rather alarming prospect that a foreign sovereign may allow proceedings to continue for years in this country before taking the point; but for my part I think that that is a theoretical difficulty. I do not think any person, even though he be a foreign sovereign, would be likely to be believed if in such an extreme case he were to come forward and assert that he had had no knowledge whatever of the proceedings. …". Discussion and Decision – Submission to Jurisdiction[99]The Respondent contends that the Respondent’s former solicitor, Ms Sam MurrayHinde, was acting on instructions provided by Ms Amel Trabelsi, an employee of the Respondent, in conceding that the Tribunal had jurisdiction to hear the Claimant’s EU-based claims and in providing a substantive response. It contends that neither the Saudi Arabian ambassador at the time, H.R.H Prince Mohammed bin Nawaf bin Abdulaziz, nor the Deputy Head of the Mission, H.E. Saud bin Nasser Al-Hamdan (being the person performing the functions of the Saudi Arabian ambassador at the material time), had conferred – either directly or indirectly – the authority on Ms Trabelsi to take a step in the proceedings for the purposes of s.2(3)(b) SIA 1978. Accordingly, the Respondent contends that the Respondent’s former solicitors cannot have been authorised by the Respondent to submit to the jurisdiction of the Tribunal.[100]Howard Kennedy were the solicitors on record throughout the time when the Respondent apparently submitted to the jurisdiction regarding the Claimant’s EU law claims.[101]I concluded that the evidence about the Respondent’s instructions to Howard Kennedy in this case was both partial and unsatisfactory.[102]I did not have the Howard Kennedy file, including correspondence recording their initial instructions, or a file note of the meeting in 2018 when Ms Trabelsi was introduced to Howard Kennedy. No one from Howard Kennedy gave evidence regarding the basis of their instructions. Neither the Ambassador nor his Deputy gave evidence. I had an unsigned statement from the Saudi Embassy saying that neither the Ambassador nor his Deputy had given authority to Ms Amel Trabelsi or anyone at the Cultural Bureau to waive state immunity.[103]On the chronology, solicitors apparently instructed by the Respondent submitted to the jurisdiction of the Tribunal concerning the EU law claims on 9 April 2019 and maintained that position, participating in the substantive proceedings, for well over 2 years, until 4 August 2021. 13 ph outcome jment and case mngmnt 1.5.14 version[104]Ms Trabelsi was the only witness regarding any authority given to Howard Kennedy solicitors to submit to the jurisdiction. She denied that she had given any instructions to Howard Kennedy to do so. She said that she had not been given authority by anyone in the Embassy, including the Ambassador and his Deputy, to submit to the jurisdiction, or to give any instructions.[105]However, Ms Trabelsi’s evidence was not credible. She clearly did give instructions to Howard Kennedy. She was given advice by Howard Kennedy and never queried it, nor said that she did not understand it. She communicated decisions to Howard Kennedy on the basis of that advice. I did not accept that she did not understand that she was giving instructions. The plain wording of Howard Kennedy’s communications asked for approval to take important actions in the proceedings and Ms Trabelsi replied using words which indicated that she understood the content of the communications.[106]It was not credible that Ms Trabelsi acted alone, without securing official approval for her communications with Howard Kennedy. In her evidence to the Tribunal, Ms Trabelsi emphasized her lack of experience in legal matters and her limited role. It was inconceivable that such a junior employee would have taken it upon themselves to make decisions about the conduct of the proceedings without seeking authority to do so. Such conduct would have been inexplicably reckless and incompetent in the extreme.[107]In her email of 9 April 2019, Ms Trabelsi said ““We agree with your point 1 and 2”. I considered that it was notable that Ms Trabelsi, who told the Tribunal that she speaks English and Arabic, used the word “we” and not “I”. Her own words indicated that she was not speaking simply on her own behalf.[108]More generally, I also found it incredible that Ms Trabelsi, who had no legal experience, would have been permitted by the Respondent to correspond with Howard Kennedy in relation to this case for such an extended period of time without a more senior official reviewing the correspondence. It was not credible that Ms Trabelsi had not been supervised by a diplomat in her conduct of the matter and in providing instructions.[109]I also found it very difficult to believe that experienced employment law solicitors would act in state immunity proceedings without establishing that the person who was giving instructions had proper authority to do so.[110]It was clear to me that the limited email exchanges did not represent the complete picture regarding authority to act as between the Respondent and Howard Kennedy. As I have stated, the solicitors’ file was not available.[111]On the law, a step taken by solicitors instructed by the mission cannot constitute a waiver of immunity unless they have been authorised to take it, either directly by the head of the mission or indirectly by a member of the mission who has been authorised by the head of the mission to do so, Aziz [56] and the doctrine of ostensible authority does not apply either to solicitors instructed by the mission or to a member of the mission (other than the head or acting head of the mission), nor can jurisdiction be created by an estoppel, Aziz [53, 58]. 14 ph outcome jment and case mngmnt 1.5.14 version[112]There is no direct evidence in this case that Howard Kennedy were authorised to take any step submitting to the jurisdiction, either directly by the head of the mission or indirectly by a member of the mission who has been authorised by the head of the mission to do so.[113]However, it is open to a Tribunal, in determining that issue, to infer from all the circumstances that a member of the mission, or solicitors instructed by the mission, acted with the necessary authority, Aziz [58].[114]On the facts that I have set out, I infer that Ms Trabelsi was authorised by the Ambassador or his deputy to give instructions to Howard Kennedy. I note the words of Parker LJ In Baccus SRL v Servicio Nacional del Trigo [1957] 1QB 438 at 474. I cannot believe that such a junior employee as Ms Trabelsi acted as she did, giving instructions to Howard Kennedy in legal proceedings against the Respondent, without having been given authority by the relevant person – the Ambassador or his Deputy - to do so. I cannot believe that Ms Trabelsi’s correspondence was not reviewed by a senior person in the Embassy acting under the instruction of the Ambassador. I cannot believe that the Respondent submitted to the jurisdiction on 9 April 2019 and continued to do so for more than 2 years, without the Ambassador being aware of this and having agreed to it.[115]I decide that the Respondent submitted to the jurisdiction in respect of the Claimant’s EU law-derived claims and that the Head of Mission, or his deputy, authorised this. State Immunity and the Claimant’s EU Law Claims Evidence - The Claimant’s Job Roles[116]The Claimant was employed by the Respondent from January 2013 until 6 January 2018 under an employment contract dated 20 January 2013, HB/191-195.[117]The Claimant’s employment contract states her role as “Student Services coordinator”.[118]The Claimant told the Tribunal that between January 2013 and 30 July 2015 she worked as an Academic Adviser in the Respondent’s Academic Department, handling requests from Saudi students studying in the UK. These students had received scholarships from the Saudi Arabian Ministry of Education to attend UK universities. At any one time there are around 20,000 students studying at UK universities pursuant to these Saudi Ministry of Education scholarships.[119]The Claimant told the Tribunal that she was aware that some students had a defence background. She said that she had nothing to do with these students; but all arrangements for these students were dealt with by the Military attaché in the Respondent’s Defence department, which was in a separate building. The Claimant told the Tribunal that, if the Defence department needed to contact the Department of Education, they would direct their enquiries to a Saudi diplomat, Dr Khaled Alsobi.[120]The Claimant said that she had access to a computer system called Safeer. Students would make requests, for example, for financial guarantee letters or travel tickets, through the system. The Claimant would consider the requests made 15 ph outcome jment and case mngmnt 1.5.14 version through the Safeer system and check that the student had supplied the necessary supporting documentation. If the documentation was complete, the Claimant would forward the request and documentation to her head of department. The Claimant said that she did not sign the relevant guarantee letters herself.[121]During this period, the Claimant said, she also received academic reports on students from their universities and uploaded these to the Safeer system. If a student was not obtaining good grades, or had failed part of their course, the Claimant would report this to the Head of Department. It was put to the Claimant in cross examination that there were records for members of the Saudi Royal Family on the Safeer system. The Claimant said that there were 13,000 members of the Saudi Royal Family and that she could not remember whether any of them were on the Safeer system or not. The Claimant said that, in any event, she had access to contact details and academic information on Safeer, including students’ courses and universities. The Claimant said that she did not have access to financial information.[122]The Claimant told the Tribunal that, from 30 July 2015 to September 2017, she was transferred from the Respondent’s Academic Department to the Cultural Affairs department. She said that she no longer had access to the Safeer computer system, but worked on cultural projects which Saudi students at UK universities wanted to set up. These projects might include student or academic conferences or art exhibitions.[123]The student would make a request for funding and support (financial and otherwise) for their project to Dr Bin Ghali, Head of the Cultural Affairs Department. The Claimant would then write a report for Dr Bin Ghali which summarised the project and outlined its requirements, such as room hire and catering. Dr Bin Ghali would discuss the proposal with the Cultural Attaché, who would decide whether to support the project and offer funding. If a project was approved, the Claimant would ask various UK universities whether they would host the event and send out notifications to Saudi students about it.[124]The Claimant said that she attended the Ninth Saudi student conference held at the ICC, Birmingham between 13-14 February 2016 HB/400, and helped the students to set up the exhibits in the venue. She also discussed the exhibits with visitors who attended.[125]By way of further example, the Claimant said that in 2017 she attended a Saudi 2030 Vision exhibition on the history and future of Saudi Arabia, at which Saudi students shared their art. The Claimant was involved with the art exhibition which was held at Birmingham University on 17 February 2017 and assisted the Saudi students in explaining their art to the British students and teachers. She also helped sort out technical problems with the staging of the exhibition within the venue.[126]The Claimant told the Tribunal that her role from 30 July 2015 to September 2017 also encompassed being editor for the Al-Thaqafia magazine (a cultural journal), which the Embassy released every three months. The magazine was written in Arabic. The Claimant gave evidence that articles would be submitted by anyone to an email address checked by Dr Bin Ghali’s secretary. The articles would cover a wide range of topics typically found in magazines such as life in the 16 ph outcome jment and case mngmnt 1.5.14 version UK, studying in the UK, history and poetry. Dr Bin Ghali’s secretary would send the Claimant the articles for her to proofread and the Claimant would then forward them to Dr Bin Ghali, the Head of the Department, who would decide which articles would be included in the magazine. The Claimant would send the selected articles for publication.[127]From the end of 2016, the Claimant told the Tribunal that she began working on a translation project to translate well known books by Saudi Arabian writers, selected by Dr Bin Ghali and the Cultural Attaché, from Arabic into English. The Claimant did not complete this project because it was taken away from her from March 2017.[128]The Claimant agreed that she was copied into emails sent to Dr Bin Ghali, but said that she was only copied into emails which were directly relevant to her own work. She said that, when Dr Bin Ghali wrote to the Cultural Attaché, he did not copy the Claimant into that correspondence.[129]The Claimant told the Tribunal that she was given little or no work from March 2017, until she was transferred to the Respondent’s Ticketing Department on 18 September 2017. The Ticketing Department arranged student travel through the Safeer system. The Claimant never worked there because she was absent from work throughout the relevant period by reason of sick leave and annual leave.[130]The Claimant was allocated to the Ticketing Department until her employment ended on 7 January 2018.[131]In cross examination the Claimant denied that she was in a leadership role – she said that she had never been in any form of management role at the Respondent.[132]It was put to the Claimant that, as stated on its website, the Cultural Bureau’s functions included matters such as “Seek to obtain scholarships for Saudi students in scientific subjects of rare or highly competitive nature.”; “Help students to enroll in universities or institutes appropriate to their studies and recommended by the Ministry of Higher Education”; “ Hold scientific conferences for Saudi students and enable them to discuss their subjects of study” “Attest the authenticity of the certificates issued by the United Kingdom.”[133]The Claimant said that she was unaware of all of the functions of the Cultural Bureau, but was aware only of her own job roles.[134]The Claimant denied that she had any ultimate decision making capacity in any of the roles she undertook. She denied that she had her own office – she said that she shared an office. She denied that she had a diplomatic parking space, although she agreed that her parking space was on the same carpark level as the diplomatic parking spaces.[135]Ms Alshohaib told the Tribunal that the Claimant was an academic supervisor for hundreds of students, including some from the Royal Family. She said, “Her role and authority was vast - she has the authority to decide on many matters concerning them”. Ms Alshohaib produced Excel spreadsheets to support her evidence. 17 ph outcome jment and case mngmnt 1.5.14 version[136]Ms Alshohaib also told the Tribunal that the Claimant made decisions in relation to students including making recommendations to the ministry or governmental departments in Saudi Arabia; deciding whether to give distinction awards for governmental students for high grades or high achievements; issuing warnings to students if they were not studying or attending lectures, or for their achievement or to stop paying monthly expenses; accepting or rejecting governmental students' applications for field work; and accepting or rejecting governmental students' applications for attending conferences.[137]I did not find Ms Alshohaib to be a helpful witness. She dealt with students without scholarships and agreed that the Claimant worked in a different section of the Education Department, under a different manager. She agreed that there were about 100 employees in the Respondent’s Education Department and that the Claimant sat on a different side of the building to her. I did not consider that Ms was likely to be in a position to give reliable evidence about the Claimant’s day to day job role.[138]Ms Alshohaib referred to an Excel spreadsheet and said that it showed the Claimant’s name as having taken relevant actions. I did not accept that, because the Claimant’s name appeared on the relevant spreadsheet, that she had taken relevant decisions, rather than had been the person to upload documents or input information.[139]There were no other documents which showed that the Claimant had made the types of decision Ms Alsohaib described.[140]Mr Mohammed Alahdal worked in the Cultural Affairs department of the Respondent’s Cultural Bureau from early 2013 until September 2017, as the Website Admin Supervisor. He explained in his witness statement at [3] that, “The Cultural Bureau is highly important - it represents part of the overall mission of the Royal Embassy of Saudi Arabia in the UK. It represents the Kingdom of Saudi Arabia in the UK on educational, scientific and cultural affairs, promoting good relations with educational and cultural institutions in the UK, and looking after the interests of Saudi nationals who have come to study in the UK or to carry any scientific task. … The Cultural Affairs [Department] is at the heart of the Cultural Bureau because it deals with culture, relations, science and education in the context of the Mission and, also, in protecting the interests of Saudi nationals, including students and Saudi scientific or cultural visitors.”[141]In his witness statement, Mr Alahdal told the Tribunal that the Claimant reported to the head of the department, Dr Nasser Abdullah Bin Ghali, who was a diplomat and who, in turn, was deputy to the Cultural Attaché. Mr Alahdal said that Dr Bin Ghali’s role was to further and support the mission by:a. overseeing the Cultural Bureau's responsibilities to safeguard and protect the interests of Saudi students, and to organise the students and their studies;b. publishing press releases for the Journal, Al-Thaqafiyah, which is printed and circulated by the Cultural Affairs department, as an official journal of the Cultural Bureau 18 ph outcome jment and case mngmnt 1.5.14 versionc. planning, preparing and organising academic events such as conferences and graduation ceremonies, which are huge, governmental events, attended by students’ families, including Saudi officials, Saudi ministers, members of the Saudi royal family, and VIP guests;d. supervising and running the various Saudi student clubs around the United Kingdom and their social, academic, sport, cultural and scientific events around the UK; ande. being in charge of the Saudi government "2030 Vision" programme - the Cultural Bureau is the part of the government of Saudi Arabia which has responsibility to promote "2030 Vision" in the UK.[142]In his witness statement, Mr Alahdal told the Tribunal that he believed that the Claimant attended meetings with Dr Bin Ghali; reviewed and drafted correspondence for Dr Bin Ghali; had access to, and had sight of all correspondence received by, and sent to, Dr Bin Ghali; and handled confidential and sensitive information relating to as VIP guest information and Saudi students' clubs around the UK.[143]He said, “It soon became apparent that, as a result of her work, her duties, her level of responsibility, and her skills, and, especially her position and influence, Ms Alhayali was in fact herself involved in running the entire Cultural Affairs department. It was apparent that everyone viewed her as being in charge. Things that show this are that she was:a. in the editorial management of the journal (AlThaqafiyah) …b. heavily involved in organising the Saudi Students Conference .. heavily involved in the 2030 Vision Programme.. ; d. heavily involved in the running of the Saudi Clubs in the UK; e. commanding other employees in Cultural Bureau to do tasks ; f. almost always in "Cc" in emails sent to Dr Bin Ghali and other diplomats and other employees in the department ; g. the one who was praised for work of the department; and h. the point of contact from outside institutions in the UK or from Saudi Arabia .”[144]However, despite what Mr Alahdal set out in his witness statement, it was clear from his evidence in cross examination that Mr Alahdal had little interaction with the Claimant, or knowledge of her role.[145]Mr Alahdal’s knowledge of the Claimant’s involvement with the Al-Thaqafiyah journal extended only to the fact that the Claimant would send Mr Alahdal the journal articles to be put on the Respondent’s website.[146]Mr Alahdal agreed that he was not involved in reviewing students’ proposals to the cultural department, nor in any reports which the Claimant prepared in relation to these. He was not involved in the Claimant’s communications with students or universities. He did not help with setting up exhibitions. He was not the Claimant’s line manager, nor senior to her. Mr Alahdal agreed that Dr Bin Ghazi had his own private secretary, who was not the Claimant. He agreed that he could not know whether the Claimant was copied into all Dr Bin Ghali’s correspondence, but said that he had seen her being copied into correspondence.[147]I rejected Mr Alahdal’s evidence that the Claimant was “running the entire Cultural Affairs department”. I rejected his evidence that the Claimant attended 19 ph outcome jment and case mngmnt 1.5.14 version meetings with Dr Bin Ghali; reviewed and drafted correspondence for Dr Bin Ghali; had access to, and had sight of all correspondence received by, and sent to, Dr Bin Ghali; and handled confidential and sensitive VIP guest information. Mr Alahdal’s actual knowledge of the Claimant’s role and responsibilities did not support any of these assertions.[148]In sum, neither Mr Alahdal nor Ms Alshohaib was in a position to give reliable or detailed evidence about the Claimant’s job role or responsibilities.[149]By contrast, I found the Claimant to be a reliable witness about her own job responsibilities. She was cross examined at some length, but I did not consider that there was any successful challenge to what she said. I did not find that the Claimant minimised her role or responsibilities. The Claimant was able to explain exactly what her roles involved in the relevant departments and the limits of her responsibilities. Her evidence on this was logical and coherent. It was not contradicted by any available documentary evidence. Findings of Fact – Claimant’s Job Functions[150]I accepted the Claimant’s evidence regarding her job responsibilities and found that that between January 2013 and 30 July 2015 she worked as an Academic Adviser in the Respondent’s Academic Department, handling requests from Saudi students studying in the UK. She had access to a computer system called Safeer. Students would make requests, for example, for financial guarantee letters or travel tickets, through the system. The Claimant would consider the requests made through the Safeer system and check that the student had supplied the necessary supporting documentation. If the documentation was complete, the Claimant would forward the request and documentation to her head of department.[151]During this period, the Claimant also received academic reports on students from their universities and uploaded these to the Safeer system. If a student was not obtaining good grades or had failed part of their course, the Claimant would report this to the Head of Department. The Claimant had access to the academic information in relation to students on Safeer, including their contact details and students’ courses and universities.[152]From 30 July 2015 to September 2017 the Claimant worked in the Respondent’s Cultural Affairs department. She no longer had access to the Safeer computer system, but worked on cultural projects which Saudi students at UK universities wanted to set up.[153]Students would make a request for funding and support (financial and otherwise) for their project to Dr Bin Ghali, Head of the Cultural Affairs Department. The Claimant would write a report for Dr Bin Ghali which summarised the project and outlined its requirements. The Cultural Attaché, who would then decide whether to support the project and offer funding. If a project was approved, the Claimant would ask various UK universities whether they would host the event and send out notifications to Saudi students about it. The Claimant also assisted with the practical arrangements for setting up and hosting these events.[154]Between 30 July 2015 to September 2017 the Claimant proofread articles submitted to the Al-Thaqafia magazine (a cultural journal), which the Embassy 20 ph outcome jment and case mngmnt 1.5.14 version released every three months. Dr Bin Ghali, the Head of the Department, would decide which articles would be included in the magazine. The Claimant would then send the selected articles for publication.[155]The Claimant was copied into emails sent to Dr Bin Ghali which were directly relevant to her own work. When Mr Bin Ghali wrote to the Cultural Attaché, he did not copy the Claimant into that correspondence.[156]The Claimant was given little or no work from March 2017 until she was transferred to the Respondent’s Ticketing Department on 18 September 2017. The Ticketing Department arranged student travel through the Safeer system. The Claimant never worked in the Ticketing Department there because she was absent from work throughout the relevant period by reason of sick leave and annual leave.[157]The Claimant was not in a leadership or management role at any time during her employment at the Respondent. She had no ultimate decision making capacity in any of the roles she undertook.[158]Her roles involved providing information to her Heads of Department for them to make decisions. Her role in the Cultural Department also encompassed helping with practical arrangements for holding student events. She also attended these events and spoke with other attendees. Relevant Law: State Immunity Law and EU Law[159]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'. State Immunity: Contracts of Employment[160]However, state immunity does not apply in the case of proceedings relating to a contract of employment between the state and an individual where the contract was made in the UK or the work is to be wholly or partly performed there, s 4(1) SIA. On the other hand, s4(1) SIA itself does not apply if:(a) at the time when the proceedings are brought the individual is a national of the state concerned; or(b) at the time when the contract was made the individual was neither a national of the UK nor habitually resident there; or(c) the parties to the contract have otherwise agreed in writing, s 4(2) SIA.[161]S 4(1) SIA also does not apply to proceedings concerning the employment of the members of a mission within the meaning of the Vienna Convention on Diplomatic Relations or the members of a consular post within the meaning of the Vienna Convention on Consular Relations (“VCDR”), s 16(1)(a) SIA.[162]Art 1 VCDR defines:(1) The “members of the mission” as including “members of the staff of the mission”: art 1(b);(2) The “members of the staff of the mission” as including “members … of the administrative and technical staff … of the mission”: art 1(c); and(3) “The “members of the administrative and technical staff of the mission” are the members of the staff of the mission employed in the administrative and technical service of the mission”: art 1(f). 21 ph outcome jment and case mngmnt 1.5.14 version[163]Thus, where the provisions of s 4(2) or s 16(1)(a) apply, state immunity can operate to prevent employees from bringing claims relating to their contract of employment.[164]However, Art 6.1 European Convention on Human Rights (“ECHR”) provides: “In the determination of his civil rights and obligations…., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”[165]Art 47 Charter of Fundamental Rights of the EU provides: “47 Right to an effective remedy and to a fair trial Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this article.”[166]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, 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].[167]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].[168]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 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.” 22 ph outcome jment and case mngmnt 1.5.14 version[169]At [56] he said that the approach he set out was supported by the case law of the European Court of Human Rights, “[56] This approach is supported by the case law of the European Court of Human Rights, which I have already summarised. In Cudak v Lithuania 51 EHRR 15, Sabeh El Leil v France 54 EHRR 14, Wallishauser v Austria CE:ECHR:2012:0717JUD000015604 and Radunovic v Montenegro 66 EHRR 19, all cases concerning the administrative and technical staff of diplomatic missions, 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.”[170]In Lord Sumption had already cited at length from Cudak v Lithuania (2010) 51 E.H.R.R. 15. He cited paragraphs [64] – [67] and [70] – [71].[171]In Cudak the applicant had been hired as a secretary and switchboard operator by the Embassy of Poland in Vilnius. Her duties were stipulated in her contract and were those normally expected of such a post. In 1999, the applicant complained to the relevant Ombudsman in Lithuania that she was being sexually harassed by one of her male colleagues as a result of which she had fallen ill. She brought an action for unfair dismissal before the civil courts. The courts declined jurisdiction on the basis of state immunity, which had been invoked by the Polish Ministry of Foreign Affairs. The Lithuanian Supreme Court held that the applicant had exercised a public service function during her employment with the Embassy, and that, merely on the basis of the title of her position, her duties facilitated the exercise by Poland of its sovereign functions such that the doctrine of State immunity was applicable. Relying on art.6(1), the applicant complained to the European Court of Human Rights that the dismissal of her claim by the domestic courts violated her right of access to a court. The ECHR decided that the applicant’s art 6 right had been breached. At paragraphs [64] and [70] the ECHR said “[64] In this connection, the Court notes that the application of absolute state immunity has, for many years, clearly been eroded. In 1979 the International Law Commission was given the task of codifying and gradually developing international law in the area of jurisdictional immunities of states and their property. It produced a number of drafts that were submitted to states for comment. The draft articles it adopted in 1991 included one—art.11—on contracts of employment. In 2004 the United Nations General Assembly adopted the Convention on Jurisdictional Immunities of States and their Property.”.. [69] … the applicant was not covered by any of the exceptions enumerated in art.11 of the International Law Commission’s Draft Articles: she did not perform any particular functions closely related to the exercise of governmental authority. In addition, she was not a diplomatic agent or consular officer, nor was she a national of the employer state. …” . [70] The Court observes in particular that the applicant was a switchboard operator at the Polish Embassy whose main duties were: recording international conversations, typing, sending and receiving faxes, photocopying documents, 23 ph outcome jment and case mngmnt 1.5.14 version providing information and assisting with the organisation of certain events. Neither the Lithuanian Supreme Court nor the respondent Government have shown how these duties could objectively have been related to the sovereign interests of the Polish Government. Whilst the schedule to the employment contract stated that the applicant could have been called upon to do other work at the request of the head of mission, it does not appear from the case file—nor has the Government provided any details in this connection—that she actually performed any functions related to the exercise of sovereignty by the Polish State.”[172]It is notable that Lord Sumption said, at [26] and [29] Benkharbouche, regarding the judgment of the ECHR in Cudak, “[26] The court was therefore right to regard these provisions of draft article 11 as applying the restrictive doctrine of state immunity to contracts of employment, and as foreshadowing, in that respect, the terms of the Convention.” … “[29] …Article 11 codifies customary international law so far as it applies the restrictive doctrine to contracts of employment. That would have been enough for Ms Cudak’s .. purposes. So far as article 11 goes beyond the application of the restrictive doctrine, its status is uncertain… It would perhaps have been better if the Strasbourg court had simply said that employment disputes should be dealt with in accordance with the restrictive doctrine ..”.[173]The “restrictive doctrine” in this context recognises state immunity only in respect of acts done by a state in the exercise of sovereign authority (jure imperii), as opposed to acts of a private law nature (jure gestionis).[174]In Governor of Pitcairn and Associated Islands v Sutton (1994) 104 ILR 508 New Zealand Court of Appeal, the parties had agreed the following facts in relation to the employee’s role: “ THE applicant, Mrs Sutton, was employed by His Excellency the Governor at the Office at [sic] the Governor of Pitcairn in Auckland. The applicant was employed in the position of typist/clerk. The applicant’s duties comprised the provision of all typing and secretarial services necessary to operate the Office of the Governor, including typing all communications between the Governor, the Commissioner and Pitcairn, including the Governor’s official instructions, and registering all mail going into and out of the Office of the Governor. Essentially Mrs Sutton was employed by the Governor in order to assist in the carrying out of the Governor’s administrative functions as the Governor of Pitcairn.”[175]Article 3 of the Convention on Diplomatic Relations (Vienna, 18 April 1961; TS 19 (1965); Cmnd 2565 provides: 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. 24 ph outcome jment and case mngmnt 1.5.14 version[176]The SC in Benkharbouche decided that, with regard to purely domestic staff employed in a diplomatic mission, their employment is not an inherently governmental act, but is an act of a private law character, and there is no basis in customary international law for the application of state immunity in an employment context to such acts. The wider immunity conferred in such employment cases by ss 4(2)(b) and 16(1)(a) State Immunity Act 1978 was therefore inconsistent with art 6 European Convention on Human Rights, and art 47 Charter of Fundamental Rights of the EU.[177]Following Benkharbouche, Tribunals do have jurisdiction to hear complaints brought by domestic staff against foreign states based on EU law, if the employment relationship is of a purely private law character. Tribunals also have jurisdiction to hear complaints brought by administrative staff, if the employment relationship was of a purely private law character. Art 47 of the Charter provides for the right to an effective remedy and a fair trial. The Supreme Court decided that the Charter therefore provided the power to disapply the provisions of the SIA 1978 entirely to ensure that the Claimants were able to pursue an effective remedy for the alleged contravention of their EU law rights.[178]For employment claims before IP completion day (31 December 2020), the general principles in the Charter continue to apply and Claimants can rely on the Charter, as described in Benkharbouche, to disapply the SIA where it is incompatible with those general principles (Withdrawal Act 2018 Sch 8 para 39(3)). Sovereign Acts in Private Law Employment[179]At [57] - [58] Benkharbouche, Lord Sumption cautioned against the suggestion that, because the employment of an employee is of a private law character, state immunity does not attach to any act of the state in relation to that employment. He gave examples of where state immunity could attach to particular acts of a state in relation to an employee.[180]He said, “[57] I would, however, wish to guard against the suggestion that the character of the employment is always and necessarily decisive. Two points should be made… [58] The first is that 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. These particular examples are all reflected in the United Nations Convention and were extensively discussed in the preparatory sessions of the Inter-national Law Commission. They are certainly not exhaustive. United States v Public Service Alliance of Canada, Re Canada Labour Code [1993] 2 LRC 78, [1992] 2 SCR 50 concerned the employment of civilian tradesmen at a US military base in Canada. The Supreme Court of Canada held that while a contract of employment for work not involving participation in the sovereign functions of the state was in principle a 25 ph outcome jment and case mngmnt 1.5.14 version contract of a private law nature, particular aspects of the employment relationship might be immune as arising from inherently governmental considerations, for example the introduction of a no-strike clause deemed to be essential to the military efficiency of the base. In these cases, it can be difficult to distinguish between the purpose and the legal character of the relevant acts of the foreign state. But as La Forest J pointed out ([1993] 2 LRC 78 at 89, [1992] 2 SCR 50 at 70), in this context the state’s purpose in doing the act may be relevant, not in itself, but as an indication of the act’s juridical character.” Discussion and Decision Private Law Employment – Jurisdiction to Hear EU Law Complaints[181]I considered, first, whether the Respondent’s employment of the Claimant was an exercise of sovereign authority. If it was not, the Tribunal has jurisdiction to hear her complaints against the Respondent based on EU law.[182]The Respondent contended that the functions performed by the Claimant in her role fell within the sphere of governmental or sovereign activity and included the exercise of sovereign authority which had been delegated to her by the Respondent’s officials. It contended that the Claimant's role was intrinsically linked with and supportive of protecting and safeguarding the interests of student nationals of Saudi Arabia, being "functions that are inherently governmental" and, therefore, the exercise of sovereign authority. It contended that promoting the culture and traditions of a foreign State and protecting the interests of their nationals whilst studying abroad, are inherently part of the mission’s sovereign functions in promoting cordial relations between the Respondent and the United Kingdom and the Respondent's diplomatic life generally, Article 3 of the Vienna Convention on Diplomatic Relations.[183]On my findings of fact, while the functions of the Respondent itself may have been inherently governmental, I considered that all the Claimant’s duties were truly ancillary and supportive to this, as described by Lord Sumption in Benkharbouche, at [55]. Essentially, the Claimant’s role in the Education Department involved collating and recording documents which related to student nationals of Saudi Arabia and their studies in the UK. The documents she collated did not relate to government officials. She facilitated the studies of private citizens. The Claimant did not have any important decision-making functions, but referred any nonstandard matters to her Head of Department. In her Cultural Bureau role, she provided reports on proposals made by Saudi nationals for cultural events. Again, she had no decision-making role in whether to approve these projects, or make funding available for them. The Claimant also proof-read articles for journals and assisted in the practical arrangements for events. All these were functional, practical, supportive duties.[184]On my findings of fact, the Claimant provided information to her manager for him, or the Attaché, to make the relevant decisions. Her functions were indeed “essentially ancillary and supportive” to the governmental functions of the Respondent. The Claimant’s correspondence with external bodies was confined to correspondence concerning students and their universities. This was not a governmental matter but involved making practical arrangements for Saudi nationals studying abroad. 26 ph outcome jment and case mngmnt 1.5.14 version[185]Her role did not comprise “all typing and secretarial services necessary to operate” Dr Bin Ghali’s office and did not include typing communications between him and government officials. It did not include typing his “official instructions”, unlike in Governor of Pitcairn and Associated Islands v Sutton. Her role was not close to such governmental functions. The Claimant was copied into correspondence directly concerning her own role.[186]It is logical that the Claimant might have had access to some information about the children of government officials, or members of the Royal family, in her role student adviser role. However, her role was a purely administrative one, dealing with requests for letters of guarantee and funding for travel.[187]Likewise, her functions in the Ticketing Department were simply to arrange student travel through the Safeer system. The Claimant never worked there because she was absent from work throughout the relevant period by reason of sick leave and annual leave. If she had worked, her functions would have been purely practical and administrative tasks arranging travel for Saudi student nationals. This had little connection with any governmental function of the mission.[188]I did not agree with the Respondent’s submission that, because the Claimant’s job role assisted the Respondent to carry out its governmental functions as described in Article 3 of the Convention on Diplomatic Relations, her employment was an exercise of sovereign authority.[189]The Respondent’s submission appeared to be inconsistent with the dictum of Lord Sumption in Benkharbouche, at [55] and the approach of the ECHR in Cudak v Lithuania. Lord Sumption’s words suggest that technical and administrative staff, in general, exercise ancillary and supportive functions. He does not suggest that their employment is an exercise of sovereign authority simply because they support or assist the governmental functions of the mission. Rather, he says 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 (emphasis added).[190]Lord Sumption’s examples of such administrative staff, whose functions might be sufficiently close to the governmental functions of the mission, were Cypher clerks and confidential secretarial staff. Such employees are necessarily privy to highly confidential governmental communications. On the agreed facts in Governor of Pitcairn and Associated Islands v Sutton, the secretary typed “all communications between the Governor, the Commissioner and Pitcairn, including the Governor’s official instructions”. Her role therefore encompassed typing governmental-level communications.[191]In Cudak v Lithuania, the applicant was employed at the Polish Embassy in Vilnius. The functions of an Embassy are defined in Art 3 VCDR. The functions of administrative staff at Embassies are inherently likely to be supportive of the activities set out in Art 3. However, the ECHR did not suggest that, because the applicant was employed in the Embassy, and carried out administrative functions there, that her employment should be considered to be an act of sovereign authority. 27 ph outcome jment and case mngmnt 1.5.14 version[192]On the contrary, the ECHR in Cudak said that it had not been demonstrated how the administrative functions of the applicant in “recording international conversations, typing, sending and receiving faxes, photocopying documents, providing information and assisting with the organisation of certain events” could objectively have been related to the sovereign interests of the Polish Government.[193]The Claimant’s functions throughout her employment were similar to those of the applicant in Cudak. I did not consider that, because the Claimant’s functions were broadly supportive of the Respondent’s Article 3 VCDR functions, that meant that her employment was an act of sovereign authority.[194]On the facts, the Claimant’s functions were not “close” to the governmental functions of the mission; they were relatively low-level ancillary and supportive functions.[195]The Claimant’s employment was not an exercise of sovereign authority. The Tribunal has jurisdiction to hear her complaints against the Respondent based on EU law. Discussion and Decision - No Acts of Sovereign Authority in Private Law Employment[196]Alternatively, the Respondent contends that the Claimant’s central claims concern a diplomat, Mr Zafer Aljalfan and how his conduct was handled by the Embassy (Grounds of Complaint §7 – 21). It contends that, if her claims were litigated in the ET, this is likely to involve judicial consideration of the policies and objectives of the Respondent when exercising its functions as a sovereign state.[197]I did not accept this assertion by the Respondent. The Respondent put forward no factual basis for it.[198]I acknowledged that, while Benkharbouche indicated that the employment of administrative and technical staff, whose functions were truly ancillary and supportive, is an act of a private law nature, state immunity could still attach to certain acts of a state in relation to that employment - paras [57] & [58] Benkharbouche.[199]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.[200]However, I did not accept that the conduct of individual Embassy members of staff, or the practices adopted by the Embassy in relation to such conduct, necessarily arose out of the Saudi state’s governmental policies at all. It was not explained how they might on the facts of this case.[201]I was therefore not satisfied that there were any particular acts of sovereign authority pleaded in the Claimant’s or Respondent’s substantive cases to which state immunity could attach. 28 ph outcome jment and case mngmnt 1.5.14 version[202]The Respondent contended that the Claimant had access to confidential information which the Tribunal must not examine. This was not a reason for attaching state immunity to any alleged act. The matter can be addressed in the normal way by redaction, anonymisation or agreed facts where appropriate. Personal Injury Claim
Relevant Law
[203]By s5 SIA “A State is not immune as respects proceedings in respect of—(a) death or personal injury; or(b) damage to or loss of tangible property, caused by an act or omission in the United Kingdom.”[204]An employee can rely upon the exclusion from state immunity under s5 SIA in relation to a personal injury claim for unlawful discrimination: Ogbonna v. Republic of Nigeria [2012] ICR 32. In that case, Underhill P held that claim for compensation for psychiatric illness caused by unlawful discrimination is a claim for “personal injury” within the meaning of s5 State Immunity Act 1978 and an employment tribunal accordingly has jurisdiction to entertain such a claim by an employee of a state even if he or she is a member of mission within the meaning of s16(1)(a) SIA. Underhill P held that, while personal injury was not a necessary or even typical part of a discrimination claim, when personal injury occurred in such a claim, the SIA did not bar a claim for damages for it: “ [12] The first point, as helpfully elucidated by Mr Pipi in his skeleton argument and oral submissions, is that the effect of sections 4 and 16 taken together is that a state enjoys absolute immunity in respect of “proceedings relating to a contract of employment” — which includes a claim of infringement of statutory rights: see section 4 (6) — in the case of employees who are members of a mission, and that section 5 has no application in such a case. I cannot accept this submission. 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.”[205]Article 12 of the 2004 UN Convention on Jurisdictional Immunities of States and Their Property (“UNCSI”) which provides: “Unless otherwise agreed between the States concerned, a state cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to pecuniary compensation for death or injury to the person, or damage to or loss of tangible property, caused by an act or omission which is alleged to be attributable to the State, if the act or omission occurred in whole or in part in the territory of that other State and if the author of the act or omission was present in that territory at the time of the act or omission.” 29 ph outcome jment and case mngmnt 1.5.14 version[206]The Law of State Immunity (Fox and Webb, OUP, Third edition) at p470 says: “The tortious conduct covered by s5 is confined to acts causing physical damage to the person or property; damage resulting from words, spoken or written, remains immune.” See Yessenin Volpin v Novosti Press Agency, Tass etc 443 ESupp 849 (SDNY 1978); 63 ILR 127; Krajina v Tass Agency [1949] 2 All ER 274; 16 ILR 129; Grovit v De Nederlandsche Bank NV [2007] 1 All ER (Comm) 106. See also Schreiber v Germany 216 DLR (4th) 513.[207]The ILC Commentary on Article 12 says: “(1) This article covers an exception to the general rule of State immunity in the field of tort or civil liability resulting from an act or omission which has caused personal injury to a natural person or damage to or loss of tangible property.”[208]Paragraph 4 of the Commentary states: “… the physical injury to the person or the damage to tangible property … appears to be confined principally to insurable risks. The areas of damage envisaged in article 12 are mainly concerned with accidental death or physical injuries to persons or damage to tangible property involved in traffic accidents, such as moving vehicles, motorcycles, locomotives full speed boats. In other words, the article covers most areas of accidents involved in the transport of goods and passengers by rail, road, air or waterways. Essentially, the rule of non-immunity will preclude the possibility of the insurance company hiding behind the cloak of state immunity and evading its liability to the injured individuals. In addition, the scope of article 12 is wide enough to cover all also intentional physical harm such as assault and battery, malicious damage to property, arson or even homicide, including political assassination.”[209]Article 11 of the 1972 European Convention on State Immunity provides: ‘A Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State in proceedings which relate to redress for injury to the person or damage to tangible property, if the facts which occasioned the injury or damage occurred in the territory of the State of the forum, and if the author of the injury or damage was present in that territory at the time when those facts occurred.’[210]The Draft Explanatory Report on the draft European Convention on State Immunity Appendix IV of the 1972 European Convention on State Immunity states, in respect of Article 11:47. This article has been drafted on the lines of Article 10 (4) of the Hague Convention of 1 February 1971 on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters.48. Where there has been injury to the person or damage to property, the rule of non-immunity applies equally to any concomitant claims for non-material damage resulting from the same acts, provided of course that a claim for such damage lies under the applicable law (e.g. in respect of pretium doloris). Where there has been no physical injury and no damage to tangible property, the article does not apply. This is the case, for example, as regards unfair competition (subject to the applicability of other articles of the Convention, such as Article 7) or defamation. 30 ph outcome jment and case mngmnt 1.5.14 version49. The author of the damage must have been on the territory of the State of the forum at the time the damage was caused; this requirement does not apply, however, to the person whose liability is in issue. For example, when a vehicle belonging to a State is involved in a traffic accident, then, provided the driver of the vehicle may be sued, even though the plaintiff does not seek to establish the personal liability of the driver.”[211]The State Immunity Act 1978 is to be construed against the background of generally recognised principles of public international law, Alcom v Republic of Colombia [1984] A.C. 580, at [597].[212]It is settled law that “there is a strong presumption in favour of interpreting English law (whether common law or statute) in a way which does not place the United Kingdom in breach of an international obligation”; R v Lyons [2002] UKHL 44, [2003] 1 AC 976, para. 27 (Lord Hoffmann). See also Assange v Sweden [2012] UKSC 22, [2012] 2 AC 471, paras 10 (Lord Phillips), 98 (Lord Brown); 112 (Lord Kerr); 122 (Lord Dyson)).[213]Nevertheless, in Federal Republic of Nigeria v Ogbonna [2012] ICR Underhill P (as he then was), considered Military Affairs Office of the Embassy of the State of Kuwait v Caramba-Coker EAT 1054/02 and said at [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”. The decision would seem therefore on its face clearly to apply to the circumstances of the present case. The Judge was right to hold that she was bound by it. I am of course not so bound , and Mr Pipi submitted that the section 5 point was only fairly briefly dealt with in Keith J's Judgment and that it did not seem that it had been very fully argued. I accept that; but my starting-point must nevertheless be, on ordinary principles, that I should not depart from CarambaCoker unless I am satisfied that it was wrong.’[214]Underhill P did not consider that Caramba – Coker was wrongly decided. In his judgment, Underhill P reaffirmed the position that an employee of a mission could pursue a personal injury claim against the mission, in circumstances in which that personal injury claim took the form of a discrimination claim, and that it did not matter whether the Claimant claimed in respect of physical or psychiatric injury, paragraphs [16] – [21] Ogbonna.[215]At [21] Underhill P said, “[21] In sum, I find nothing in the international law materials which supports Mr Pipi’s submission that there is a recognised meaning in international law to the phrase “personal injury” which is more limited than the natural meaning of those words in domestic law.” Discussion and Decision – No State Immunity in Personal Injury Claim[216]I have found that the Respondent does not have state immunity in respect of the Claimant’s claims based on EU law. 31 ph outcome jment and case mngmnt 1.5.14 version[217]Even if I am wrong in that, I consider that the Claimant has brought a claim for personal injury – namely, psychiatric injury by way of exacerbation to her depression and mental health issues. I consider that the Tribunal has jurisdiction to consider this claim because s5 SIA disapplies state immunity in respect of such a claim.[218]At paragraph [68] of the Claimant’s amended details of complaint, HB/54, the Claimant claims: “the unlawful harassment, victimisation and discrimination detailed above has caused and/or exacerbated the Claimant’s depression and mental health issues in connection with which the Claimant seeks personal injury damages under the Equality Act 2010”.[219]The Claimant served a Schedule of Loss dated 9 December 2019, HB/69 to 70. In it, the Claimant claims an award for injury to health and says that she remains unable to obtain alternative employment due to her health.[220]In Ogbonna, Ms Ogbonna also claimed that her dismissal was an act of discrimination and that her dismissal had caused injury, including injury to her mental health (depression), paragraph [2] of the judgment in Ogbonna.[221]I consider that I am bound by the decision of the EAT in Ogbonna and find that, by reason of s5 SIA, the Respondent has no immunity in respect of a claim for personal injury, including a claim for psychiatric injury, arising in the Claimant’s discrimination claim.[222]The Respondent contends that this interpretation s5 SIA gives 'personal injury' a meaning which, whilst it might reflect social and legal developments in England & Wales, does not reflect international agreements, international custom, and rules of international law which the United Kingdom is bound to respect.[223]It says that no court, other than the UK’s Employment Appeal Tribunal, has interpreted ‘personal injury’ within the 1972 Convention or the 2004 Convention to include depression, or any other psychiatric injury.[224]The Respondent says that the Employment Appeal Tribunal in was wrong in Ogbonna to interpret the phrase ‘personal injury’ in accordance with domestic law to cover cases of psychiatric as well as physical injury. It says that the Employment Appeal Tribunal should have given the phrase its common meaning in accordance with international law.[225]I disagree. In its argument, the Respondent relies on Article 11 of the 1972 Convention on State Immunity and Article 12 of the 2004 United Nations Convention on Judicial Immunities of States and their Property. Underhill P considered both of these international provisions, at [16] – [21] of Ogbonna. Underhill P did not consider that these international instruments distinguished between physical injury and psychiatric injury.[226]Furthermore, while the Respondent relies on a Canadian case, Schreiber v The Federal Republic of Germany and the Attorney General of Canada [2002] 3 SCR 269, Underhill P considered this case in Ogbonna at [22] – [26] and did not accept that Schreiber, properly read, excluding psychiatric injury from the definition of personal injury. He said that, if he was wrong in that, the decision was one of Canadian and not international law, [25] of Ogbonna. 32 ph outcome jment and case mngmnt 1.5.14 version[227]I am bound by Ogbonna, in which Underhill P considered and rejected the distinction between physical and psychiatric injury under s5 SIA which the Respondent seeks to make. I consider that Underhill P gave a considered and fully reasoned judgment on this issue in Ogbonna and that his conclusion is one which I should follow, for the reasons he gave. Case Management[228]After the hearing in this case, the Claimant wrote to the Tribunal to ask for clarity that the Final Hearing is listed to consider liability only. I make clear that the Final Hearing shall consider liability only, as was the case when the Final Hearing was first listed. It is appropriate, in a case involving a claim for psychiatric injury, for a remedy hearing to take place after the liability result is known and after the parties have had an opportunity to obtain medical evidence. Dated: 7 January 2022