Mrs A S Koffi v Permanent Representation of Cote d’Ivoire to International Commodity Organisations: 2202255/2019

EMPLOYMENT TRIBUNALS

Case No 2202255/2019

Between

Mrs A S KoffiClaimant

Permanent Representation of Cote d’Ivoire to InternationalRespondent

Before

Employment Judge Norris

Date 11 September 2024

REASONS

[1]The Claimant, who was employed by the Respondent between 5 November 2014 and 31 January 2019 as an adviser, submitted a claim on 10 June 2019, complaining of unfair dismissal, discrimination because of religion or belief and/or discrimination because of sex. She was represented throughout by Mr Cormac Rice of Paul Doran solicitors.

[2]The grounds of claim set out allegations of the sexual harassment of the Claimant by her manager, Mr Aly Touré, between 23rd February and 20 December 2018. She asserted that on 20 December 2018, when she told Mr Touré that she was not interested, he threatened that if she said anything about it, she would be “done”. On 15 January 2019, the Claimant and her colleagues were informed of a budget reduction and the need for a commensurate staffing reduction. The following day, Mr Touré again propositioned the Claimant and on 17 January 2019, he told her that she would be dismissed because she continued to refuse his sexual advances.

[3]On 22 January 2019, the Claimant refused to sign for receipt of a letter dismissing her and felt physically threatened by Mr Touré into doing so. On 4 February 2019, Mr Touré refused to give her a copy of the letter and propositioned her once more. She eventually received a copy of the letter of dismissal at her home address on 7 March 2019.

[4]Under a separate heading “Political/Philosophical Belief”, the Claimant further asserted that she was dismissed for refusing to enter a sexual relationship with Mr Touré, and because she is a supporter of a different political party from him. She did not set out any particulars in relation to this latter assertion.

[5]In relation to the complaint of unfair dismissal, the Claimant asserts that no procedure was followed and that consequently her dismissal was both procedurally and/or substantively unfair. She was not given any right of appeal. Three colleagues performing identical roles to hers were not dismissed. By implication, there was no pooling of the four advisers, suggesting that redundancy was not the real reason for her dismissal. The Claimant concluded by asserting that her treatment constituted direct discrimination and/or harassment contrary to section 13 and/or 26 Equality Act 2010. Tribunal proceedings

[6]The claim form was served by post on the Respondent by the Tribunal on 24 September 2019 with a deadline for presenting a response of 22nd October and listing a full merits hearing for 10 to 13 March 2020. On 19 November 2019, the Tribunal wrote to the Respondent (which had not entered a response) seeking confirmation of whether it regarded itself was entitled to state immunity on the basis of exercising sovereign powers and whether it intended to file a defence. It was given until 3 December 2019 to reply. No reply was received by 3 December or at all.

[7]On 11 February 2020, the Tribunal sent out a letter warning the Respondent that it was considering whether to enter default judgement. The letter confirmed that an Unless Order had been made giving the Respondent until 25 February 2020 to enter its defence, and that if it did not do so, judgement would be entered in default and the hearing listed for 10-13 March converted (on the first day only) to a remedy hearing. Again, no response was received.

[8]On 4 March 2020, default judgement was entered in the Claimant’s favour and the Hearing listed for 10 March accordingly converted to one before an employment judge sitting alone and dealing with remedy only. The Claimant was notified that she would have to bring to the hearing all documentation which she relied for remedy purposes, including a schedule of loss and a statement confirming her case on remedy. She was to serve a copy on the Respondent by 9 March 2020 and the Respondent was notified that it would be permitted to participate, if it attended at all, only to the extent directed by the judge.

[9]On 10 March 2020, neither the Claimant nor the Respondent (nor any representative for either party) attended. Employment Judge Norris, who had entered the default judgement, caused Mr Rice to be called on the telephone and he explained that the Claimant would not be attending. A small bundle of documents had been served along with a modest witness statement running to 18 short paragraphs and a schedule of loss seeking compensation of £131,444.65. The statement made little reference to the Claimant’s medical condition and none at all to her efforts to secure new employment. In the circumstances, I considered it inappropriate to award such a sum of money without having heard from the Claimant in person, in particular in relation to her injury to feelings, for which she was claiming £27,500 plus interest as well as future loss of earnings in excess of £20,800 for a further six months out of work.

[10]I therefore adjourned the remedy hearing on 10 March and listed it for 14 May 2020. By then however, the Tribunal had closed due to the pandemic and associated restrictions, and hearings were not taking place in person. The instant case could not be concluded and instead a further Telephone Preliminary Hearing (Case Management) was held with Mr Rice attending by telephone (Teams). The Respondent was neither present nor represented. At that hearing, I made orders as to the further progress of the case and relisted it for 8 July 2020. In advance of the hearing on 8 July, the hearing was converted to take place via CVP, and did eventually take place before me on that date via that means. Conduct of the remedy hearing

[11]At the hearing on 8 July 2020, the Claimant gave evidence via CVP from her home with Mr Rice attending from his office. The Respondent was once more neither present nor represented. During the evidence, an issue arose as to the question of whether the Claimant’s employment had been lawful, in that it appeared she had paid neither tax nor National Insurance on her salary throughout her employment for the Respondent. Mr Rice informed me that a tax treaty between the UK and Côte d’Ivoire was in place and that the Claimant had been told she was part of the exemption to avoid double taxation. I asked whether the Claimant had in fact paid tax in Ivory Coast and was told she had not. The tax treaty was in the bundle and I was informed that the Claimant held dual nationality. Her passport was not in the bundle.

[12]I was concerned that if the Claimant had not paid any tax at all there may be a question of the remedy to which she would be entitled. Mr Rice indicated that he would be grateful for further time to research the matter and to present the results of such research in support of the Claimant’s remedy submissions. I agreed to give him until 29 July for that purpose. Having not heard from him by that date or indeed throughout the month of August, I caused a letter to be sent to him requiring him to confirm the position and make any further submissions within seven days. For the purpose of the remedies hearing, however, we proceeded on the basis that the Claimant had the right to claim £3270 net per month in salary on the basis of the tax treaty alluded to.

[13]On 28 September, Mr Rice responded to the Tribunal’s further requests for the submissions by noting that he had complied on 9 September and forwarding a further copy of the submissions, authorities and covering letter lodged on that date. I accept his unchallenged submissions that the Claimant was not subject to the UK tax regime by virtue of the tax treaty or, in the alternative, that if she was so subject (or if the Respondent failed to account for her tax in Ivory Coast), any illegality was at the Respondent’s door and the Claimant was neither responsible nor even aware of it. Accordingly, it would be disproportionate to deny the Claimant relief, for the reasons advanced on her behalf. Evidence and findings on remedy

[14]At the remedy hearing, the Claimant gave evidence on oath before me, relying on her witness statement. Since the Respondent was neither present nor represented, the Claimant’s evidence in all aspects of remedy was unchallenged. Mr Rice took her through her actual losses since dismissal.

[15]The Claimant informed me that when she started working for the Respondent on 5 November 2014, she earned £3,000 per month, being both the gross and net figure. Over time, this was increased to £3,270. She did not have to work her notice when she was dismissed and was paid in lieu thereof, as well as being paid for her accrued but untaken holidays.

[16]The Claimant had still not served any written evidence dealing with applications for alternative employment. I asked her about this. Her evidence, which I accept, was that she had attended the job centre regularly until she received an email telling her not to attend in person until further notice as a result of the pandemic restrictions. She made job applications via a teaching website as a supply teacher in an assistant teaching role. She was unsuccessful in that application, and this was true for all applications that she had made since her dismissal. In any event, the schools to which she was applying were also closed because of the pandemic. The Claimant has been asked if she would be available when schools reopen and she has replied that she will be available to start in September 2020.

[17]I asked if there were any jobs where she had a firm belief that she would be able to avail herself of them within the next three to six months (from July 2020) and she replied that she had been told they may be available when the schools reopen. She has teaching experience from before she joined the Respondent and would earn between £75 and £85 per day Monday to Friday in term time through agencies. She wishes to revert to that sort of work in schools if that is where she can find a position.

[18]I am mindful that the onus is not on the Claimant to show that she has behaved reasonably in seeking new work but on the Respondent to show that she has behaved unreasonably in failing to mitigate her losses. I was satisfied that the Claimant has not behaved unreasonably. She has returned to seek work in the education sector, in which she has experience. Since the remedy hearing, schools in England have reopened from September, and it appears that they should expect to remain open wherever possible in order that children’s education does not suffer further as a result of the pandemic. I find that the Claimant’s losses should therefore cease after the six months for which she has claimed.

[19]So far as the injury to feelings is concerned, again there was still very little by way of medical evidence in the bundle notwithstanding the high level of injury to feelings compensation sought by the Claimant. The Claimant had set out no further details of the conduct alleged in her witness statement but she confirmed that the harassment and acts of discrimination detailed in her particulars of claim took place and it is on these that she relies. I accept that the incidents took place as described in the claim form.

[20]I therefore asked the Claimant to explain to me how the Respondent’s conduct had impacted on her. She explained that she still feels humiliated by what was done to her and continues to take medication to help her sleep. She had recently called her general practitioner and given her the details of the medication that the Claimant had been administering to herself. She had not previously gone to the GP but had started taking medication that can be purchased over the counter in France (“Theralene”). She said she has taken this before when she has been unable to sleep and wanted something to help. When she could no longer travel to France, she called her GP who prescribed her medication. However, as this medication is quite strong and the GP does not want the Claimant to become addicted to it, she has been referred for counselling. The Claimant is waiting to start her counselling and does not know now when that will be.

[21]I asked her how long she had been taking the Theralene for and whether she had been taking consistently since her dismissal. She said she thought she had started taking it around two weeks after her dismissal, i.e. from January 2019 onwards. She found it very hard to lose her job like that and had to take it every night to sleep. She had a lot of the medication in her possession and any time people she knew went to France, she asked them to buy for her. She said it had reduced her nervousness and help to sleep a little bit at night. However, she still had nightmares and was traumatised thinking of everything. She became extremely tired with headaches and also was in fear for her life because not sleeping dehumanised her. I asked why she did not seek counselling until relatively recently. She said that she was taking the medicine to help her sleep but the GP had told her she could not continue with this. She also needed counselling.

[22]The Claimant said that the impact of the Respondent’s conduct on her got worse over time and thinking about it was quite debilitating. She had lost everything and could no longer do what she used to do before. She described not being able to meet people, go out in the community, be with her friends or help people. She explained that when you do not have any money, it is difficult to help people and to organise yourself. Money, she said, gives you power and she had stopped being the powerful woman she used to be and to enjoy her life. She could not have relationships with her friends, family, or any partner. She said she no longer wants any man to approach her now and does not want to feel brutality of men near her. She does not go out and cannot socialise as she used to do before. She has lost confidence in respect of getting back into full employment. Her confidence in the workplace has evaporated because she feels like something has gone from her and she is not the same person she used to be. She added that she was really suffering in silence.

[23]In light of the fact that the Claimant’s evidence was unchallenged, I make findings which reflect the evidence she gave.

Conclusions

[24]I reach the following conclusions on remedy.a. The Claimant was unfairly dismissed. For that, she is entitled to a basic award and a compensatory award.

b. The basic award is calculated by reference to the Claimant’s length of service (four complete years) multiplied by a week’s pay capped at the statutory amount as at the date of her dismissal (£508 – not £538 as set out in the Schedule of Loss). Additionally, as all of the Claimant’s service was while she was aged 41 or over, there is a multiplier of a factor of 1.5. Her basic award entitlement is therefore £3,048.

c. The compensatory award takes account of the Claimant’s losses since her dismissal. From the date of her dismissal until the date of the remedy hearing was a period of just under 76 weeks. Her losses for that period (including employer pension contributions) come to £60,626.30. She claims £500 for loss of statutory rights and a week’s pay (£754.62) for loss of her long notice period. Her total compensatory award is therefore £61,880.92. She gives credit for money received from the Respondent on termination (£20,753.00) leaving a balance of £41,127.92. Her annual salary was £39,240, which is therefore the appliable cap, leaving a shortfall of past loss of £1,887.92.

d. As to the discrimination element of the claim, I make no award for discrimination because of religion or belief. The Claimant gave me no details of either the discrimination suffered or the losses thereby incurred. However, I make awards for past and future losses and for injury to feelings in connection with the sex discrimination/harassment found.

e. In relation to loss of earnings, as I have found above, the Claimant is likely to be able to mitigate her loss within six months of the remedy hearing, and therefore she seeks (and I award) future losses of £20,820.02. With the shortfall in relation to the past loss, that comes to a total of £22,707.94.

f. In relation to injury to feelings, the Claimant seeks the sum (including a 10% uplift in line with Simmonds v Castle) of £22,000. I have had regard to the Second Addendum to the joint Presidential Guidance originally issued on 5 September 2017, which is applicable to cases presented on or after 6 April 2019 relating to injury to feelings awards and psychiatric injury following De Souza v Vinci Construction (UK) Ltd1. Cases in the lower band fall to be assessed between £900 and £8,800; those in the middle band between £8,800 and £26,300; while those in the upper band are between £26,300 and £44,000 with only the most exceptional cases capable of exceeding £44,000.

g. I remind myself of the long-established guidance in Prison Service v Johnson2, that the general principles underlying awards for injury to feelings are as follows:

• Awards for injury to feelings are designed to compensate the injured party fully but not to punish the guilty party. 1

[2017] EWCA Civ 879

[1997] ICR 275

• An award should not be inflated by feelings of indignation at the guilty party’s conduct.

• Awards should not be so low as to diminish respect for the policy of discrimination legislation. On the other hand, awards should not be so excessive that they might be regarded as untaxed riches.

• Awards should be broadly similar to the range of awards in personal injury cases.

• Tribunals should bear in mind the value in everyday life of the sum they are contemplating.

• Tribunals should bear in mind the need for public respect for the level of awards made.

h. The treatment that the Claimant received at the hands of the Respondent was persistent and lasted almost a year. It was deliberate, and it led to her dismissal when she refused to submit to it. Examples given in the claim form span the period 23 February 2018 until the notification in January 2019 that the Claimant was to be dismissed for refusing the sexual advances of her manager Mr Touré. It is clear that his behaviour and the loss of her job have had an enduring effect on the Claimant’s loss of self-confidence and self-worth in her community, including not only her relationships with men but also her esteem as a working woman. The pandemic restrictions have no doubt also had an effect both on the Claimant’s mental health and ability to find other work; while the Respondent is not responsible for the restrictions as such, it must take its victim as it finds her, and but for its unlawful conduct, she would not have been required to search for new work during a global pandemic. I find the Claimant’s approach to her likely future losses was moderate and sensible.

i. That said, the Claimant has been able to look for other work in a profession in which she is experienced. Having initially visited the Equality Advisory Support Service in or around March 2019, the Claimant has been self-medicating with an over-the-counter drug, Theralene, which describes itself as suitable for minor sleeping disturbance and mild anxiety. She has not sought or been prescribed medication or counselling by her GP until comparatively recently, when she could no longer procure Theralene either directly herself or indirectly via friends travelling to France.

j. In all the circumstances, and having regard to the authorities to which I was referred by Mr Rice, I conclude that an amount in the middle of the middle Vento band is appropriate and the award for injury to feelings is £17,750, uplifted by 10% to £19,305.

k. There is no uplift for a failure to follow an ACAS Code of Practice. S207A(2) TULCRA 1992 provides if a relevant Code of Practice applies and the employer has failed to comply with the Code and the failure was unreasonable, the Tribunal may, if it considers it just and equitable to do so in all the circumstances, increase any award by up to 25%. The Claimant did not raise a grievance and was not dismissed for alleged conduct matters, but for redundancy, to which the ACAS Code does not apply.

l. The Tribunal is obliged to award interest at 8% per annum on financial loss from the “midpoint” between the date of the discrimination and the date of the remedy hearing (537 days, so the midpoint is 268.5 days), on losses of £112.68 per day. Interest on financial loss is therefore awarded in the amount of £2,420.37.

m. In addition, interest falls to be calculated on the award for injury to feelings. This is similarly 8% per annum, on the award of £19,305, for 866 days (starting on 23 February 2018 when the sexual harassment commenced), i.e. £3,664.25.

n. The amount to be grossed up is accordingly the compensatory award plus the injury to feelings (including interest) but not the basic award, (i.e. £87,337.56, less £30,000 deduction for nil rate is £57,337.56 @ 20%) which comes to £98,805.97.

[25]The Respondent is therefore ordered to pay the Claimant the sum of £3,048.00 by way of basic award and the sum of £98,805.07 being the amount of compensation after grossing up, i.e. an overall total of £101,853.07.

Introduction

[1]This case has a protracted history. The Claimant submitted her claim on 10 June 2019, complaining of unfair dismissal, discrimination because of religion or belief and/or discrimination because of sex. The Employment Tribunal served the claim on the Respondent by post on 24 September 2019, giving a date for lodging the response of 22 October 2019. No response was received and accordingly on 19 November 2019, the Employment Tribunal wrote to the Respondent seeking confirmation of whether it regarded itself as entitled to state immunity and whether it was intending to enter a defence. The Respondent was given until 3 December 2019 to reply. No response was received by that date or at all.

[2]On 11 February 2020, the Tribunal wrote again to the Respondent with a warning that it was intending to enter default judgment as to liability. The Respondent was given until 25 February 2020 to lodge its response. It did not do so, and accordingly liability judgment was entered in default and the first day of the full merits hearing (10 March 2020) converted to consider remedy. However, neither party attended on that day, and having contacted the Claimant’s then representative Mr Rice, I adjourned the hearing until 14 May 2020. In light of COVID restrictions in place on that date and the closure of the Tribunal to in-person hearings, the Remedy Hearing was once again adjourned until 8 July 2020.

[3]The Remedy Hearing finally took place on 8 July 2020 (by CVP) and the Claimant gave evidence. The Respondent did not appear and was not represented. An issue arose as to the legality of the Claimant’s wages, in that she appeared to have paid no tax or National Insurance throughout her employment with the Respondent. Accordingly, I reserved my decision and gave Mr Rice time to make written submissions on the point. These having been made, the remedy judgement was completed on 17 October 2020 and sent to the parties two days later.

[4]Unfortunately, I was not made aware until late 2021 of the correspondence that ensued following promulgation of the remedy judgment, between the Respondent’s first solicitors, Riverbrooke, its second solicitors Teacher Stern and the Claimant’s solicitor Mr Rice, that correspondence being sent to the Tribunal in November and December 2020 and between February and October 2021. The Claimant found herself unable to enforce the remedy judgment. In summary, the Respondent first contended that it had not been served with the claim and that it intended to apply to set aside the judgments and then that it asserted state immunity and sought reconsideration of both judgments.

[5]It was argued on behalf of the Claimant that the reconsideration application was out of time, and this was certainly correct. However, when the correspondence was brought to my attention, it appeared to me that if the Respondent fell within any part of the definition of “the State” pursuant to section 14(1)(a) to (c) State Immunity Act 1978, it appeared to follow that the rules for service contained in section 12(1) (and the extension of time for entering an appearance under section 12(2)) should have been applied and consequently that, in line with section 12(4), no default liability judgment could validly have been entered; consequently the remedy judgment would also have to be set aside. Until the position was clarified, it appeared the parties were at a stalemate because the Claimant would continue to be unable to enforce the remedy judgment if the Respondent was covered by the SIA. Accordingly, I listed the matter for a Reconsideration Hearing under rule 72.

[6]That hearing commenced on 7 January 2022 and on that occasion the Respondent was represented by Ms Mayhew of Counsel and the Claimant by Mr BidnellEdwards, also of Counsel. It transpired that the parties had not received the directions I had sent out on listing the Reconsideration Hearing and accordingly we adjourned until 28 February 2022 for the parties to consider their arguments in relation to four questions:a. Does the Claimant accept that service of the claim form needed to be effected pursuant to section 12 State Immunity Act 1978 (SIA) (and if not, on what basis does she say it did not)?

b. If she does, does she assert nonetheless that the Respondent submitted to the jurisdiction of the Tribunal by submission of a document referred to as a ‘draft response’ and entitled “provisional grounds of resistance” [sic] on 4 December 2020, or that it otherwise falls under the jurisdiction of the Tribunal, and if so, on what basis does she so assert?

c. Does the Claimant accept that default judgment could not have been validly entered in light of section 12(4) SIA (and if not on what basis does she argue the contrary)?

d. If the Claimant maintains that the Respondent is not a state entity, on whom does she say that the burden falls of raising (and showing) that it was, or is it a point that the Tribunal should have addressed without either party having to raise and/or show it?

[7]The initial order was for the Claimant to answer these questions and for the Respondent to be given 14 days to confirm its position as regards each of them. The parties were ordered to exchange written skeleton argument by 22 February 2022. Further, the Claimant was ordered to serve on the Respondent by 14 January 2022 a copy of all documents and submissions produced by her in the proceedings until Teacher Stern came on the record.

[8]I understand that albeit late in the day and not in accordance with the order, the Claimant’s representative did serve the necessary documents, which the Respondent incorporated into its bundle for the reconvened Reconsideration Hearing. However Mr Rice then came off the record and the Claimant was unrepresented on 28 February. She applied for an adjournment of the hearing, which I refused on the basis that it was not in the interests of justice to delay further, since if the Respondent’s application succeeded, the claim form originally received in June 2019 would have to be re-served no earlier than March 2022. Further, the Claimant would be given the opportunity to comment on the Respondent’s submissions which I ordered to be served on her in advance of the Reconsideration Hearing. The Reconsideration Hearing

[9]At the hearing, we went through Ms Mayhew’s detailed submissions step-bystep and clarified with the Claimant her position and response to each of the Respondent’s arguments. I gave my decision orally at the time but indicated that I would in any event give full reasons in written form so that the Claimant could discuss with any new solicitor or other relevant person the progress of the matter to date.

The Law

[10]The relevant sections of the State Immunity Act 1978 are as follows:a. Section 14 States entitled to immunities and privileges.

(1) The immunities and privileges conferred by this Part of this Act apply to any foreign or commonwealth State other than the United Kingdom; and references to a State include references to— (a) the sovereign or other head of that State in his public capacity; (b) the government of that State; and (c) any department of that government, but not to any entity (hereafter referred to as a “separate entity”) which is distinct from the executive organs of the government of the State and capable of suing or being sued.

b. Section 12 Service of process and judgments in default of appearance. (1) Any writ or other document required to be served for instituting proceedings against a State shall be served by being transmitted through the Foreign, Commonwealth and Development Office to the Ministry of Foreign Affairs of the State and service shall be deemed to have been effected when the writ or document is received at the Ministry.

(2) Any time for entering an appearance (whether prescribed by rules of court or otherwise) shall begin to run two months after the date on which the writ or document is received as aforesaid.

(3) A State which appears in proceedings cannot thereafter object that subsection (1) above has not been complied with in the case of those proceedings.

(4) No judgment in default of appearance shall be given against a State except on proof that subsection (1) above has been complied with and that the time for entering an appearance as extended by subsection (2) above has expired.

(5) A copy of any judgment given against a State in default of appearance shall be transmitted through the Foreign, Commonwealth and Development Office] to the Ministry of Foreign Affairs of that State and any time for applying to have the judgment set aside (whether prescribed by rules of court or otherwise) shall begin to run two months after the date on which the copy of the judgment is received at the Ministry.

(6) Subsection (1) above does not prevent the service of a writ or other document in any manner to which the State has agreed and subsections (2) and (4) above do not apply where service is effected in any such manner. Findings and Conclusions

[11]The Respondent contends that it is to be regarded as the State under either section 14(1)(b) or (c) SIA. Firstly, it contends that it exercises sovereign authority in the United Kingdom, acting on behalf of Côte d’Ivoire as the interface between Côte d’Ivoire and International Commodities Bodies. It notes that the Respondent is headed by Ambassador Touré who had submitted two witness statements, in one of which he explained that the Respondent is a body representing “the commercial and economic interests of Côte d’Ivoire in the United Kingdom”.

[12]Further, the Ambassador stated that he attends seminars, meetings and workshops of various commodity bodies and delivers the instructions of the government of Côte d’Ivoire. He claims that the Respondent is a diplomatic mission based in the United Kingdom.

[13]At the first part of the reconsideration hearing on 7 January 2022, an Internet search had revealed that the Respondent appears on the London Diplomatic List for 2021 under the heading “Embassy of the Republic of Côte d’Ivoire”. Those search results had not been reproduced in the Respondent bundle for the hearing on 28 February, and I asked the Claimant whether she recalled and accepted that it did so appear. Although she accepted that it appears now, she was unsure when it had first appeared.

[14]The same search was conducted again and I am satisfied that the Respondent appeared on the London Diplomatic List in 2013, which was before the Claimant started to work there. At that time, Ambassador Touré was named as a Counsellor in the International Organisations Section Commodities, which was based at an address in Regent St, London. The Cavendish Square address to which post was sent by the Tribunal and at which the Claimant, according to her appointment letter, worked from November 2014 until her dismissal, is the one that appears on the current London Diplomatic List for the Commercial & Economic Section (Commodities), with Ambassador Touré named as such for the International Organisations Section Commodities.

[15]Further, the Respondent sought to rely on the Claimant’s own written submissions as lodged by Mr Rice on her behalf in September 2020, in answer to the question of her tax liability in the UK. It was asserted: “The place of management of [the Claimant’s] employment for the [Respondent] was indeed the Ivory Coast (the [Respondent] itself being an interface between the government of Côte d’Ivoire and the International Commodity Bodies (ICBs)) and thus tax is payable in [Côte d’Ivoire]”. The submissions went on, “The [Respondent] in its position as a medium between the government of the Côte d’Ivoire and the ICBs is such a political subdivision of the same”.

[16]Accordingly, I accepted the Respondent’s argument, which was not opposed factually by the Claimant, that the Respondent is, for the purposes of section 14 SIA, “the State” under either section 14(b) or (c).

[17]In answer to the first question, therefore, the Respondent asserts that section 12(1) must apply to the institution of proceedings against it. It is common ground that transmission through the Foreign, Commonwealth and Development Office to the Ministry of Foreign Affairs of Côte d’Ivoire did not take place as mandated by that section.

[18]The Claimant argued that the Ambassador will have received the claim and associated correspondence sent to the postal address of the Respondent and that he has chosen to ignore it until the remedy judgment was reported. That may very well be true. She argued further that he should not be above the law and that she should be entitled to pursue her claim against the Respondent. I note that the Ambassador is not a named Respondent and in any case, as I explained to the Claimant, that where service is required by law to be effected in a certain way, it is not open to the Tribunal to ignore that requirement.

[19]At the hearing on 7 January 2022, Mr Bidnell-Edwards had raised the question of whether section 12(6) could have been engaged by the Respondent simply doing nothing and hence whether it could be inferred to have agreed to service other than in accordance with section 12(1). Since he was not present and nor had he, apparently, been instructed to set out and develop any such argument on the point, I raised it in accordance with the overriding objective and specifically on the basis that the Claimant should be put, so far as possible, on an equal footing with the Respondent notwithstanding her lack of legal representation at this hearing.

[20]Ms Mayhew however referred me to the Supreme Court authority of General Dynamics United Kingdom Ltd v State of Libya1, in which the legal principles applicable to the service of proceedings were set out. Specifically, the Supreme Court held that the procedure in section 12(1) SIA is intended to be a mandatory and exclusive procedure in the cases to which it applies, subject only to the exception in section 12(6) in the case of service in a manner to which the defendant state has agreed (paragraph 81). It noted at paragraph 76 that (so far as is relevant to this case):(1) Section 12 establishes special procedures and procedural privileges in cases where the defendant is a State.

(2) In cases to which section 12(1) applies, the procedure which it establishes for service on a defendant state through the FCDO is mandatory and exclusive, subject only to the possibility of service in accordance with section 12(6) in a manner agreed by the defendant state.

(3) A particular purpose of section 12 is to provide a means by which a State can be given notice of proceedings against it and a fair opportunity to respond. … The defendant state must be given notice of the proceedings so that it has adequate time and opportunity to apply to set aside the order for enforcement, inter alia on grounds of state immunity, 1

[2021] UKSC 22

before any further steps are taken to enforce the award. A document giving such notice is a document required to be served for instituting proceedings against a State within section 12(1). …

(4) …

(5) Although there is no rule of customary international law requiring that the service of a document instituting proceedings against a defendant state be served through the diplomatic channel, considerations of international law and comity strongly support a reading of section 12(1) which makes its procedure available and mandatory, subject to section 12(6), in all cases where documents instituting proceedings are to be served on a foreign state.

(6) Although subsections 12(2), (4) and (5) make provision for entering an appearance and judgment in default of appearance, there is no reason to read section 12(1) as limited to service of proceedings which may lead to the entering of an appearance or a default judgment, or to corresponding procedures as provided for in section 22(2). On the contrary, section 12(1) is intended to establish a procedure for service of general application. …

(7) If section 12(1) has no application, there would be no procedure under the SIA by which notice of enforcement proceedings could be given to a defendant state.

(8) …”.

[21]All of that being so, it seems to me unarguable that the claim form should have been served via the FCDO in this case. If a “mandatory and exclusive” procedure could be subverted simply by the Respondent doing nothing when it had received the claim otherwise than in accordance with section 12(1), I consider that the Act would have specified this. I also accept Ms Mayhew’s argument that the State’s “agreement” in this context must precede service and not postdate it by implication.

[22]Ms Mayhew further argues that given that the claim was not validly served, there were no proceedings on foot and thus the Respondent cannot be said to have submitted to the jurisdiction by providing the various documents including the draft response/provisional grounds of resistance. I make no finding on this point because the question of whether the Respondent can avail itself of the State immunity provisions in the Act are for another day.

[23]However, I do accept that the failure of the process under section 12(1) means accordingly that the default liability judgment was entered in contravention of section 12(4). There has been no proof – nor could there be – of compliance with section 12(1) nor indeed of the proper expiry of the extended time for entering an appearance afforded by section 12(2).

[24]In light of the above findings, there is no requirement to go on to answer the fourth question of where the burden falls of raising and/or showing that the Respondent is a State entity.

[25]Accordingly, the application for reconsideration succeeds and both judgments are set aside. The Tribunal must now re-serve the original claim in accordance with section 12(1). I note that Ms Mayhew asked at the end of the Reconsideration Hearing for the original judgments to be taken down from the online decisions database and I will instruct the administration to do so, although this judgment on reconsideration will appear instead and as Ms Mayhew acknowledged, where the original judgments (and in particular the remedy judgment) have been reported or disseminated online, it is not in the Tribunal’s gift to remove such reports. Remedial Order

[26]On 17 January 2022, I caused a letter to be sent to the parties relating to a Parliamentary question of 11 February 2021 and the Hansard records for Parliament on 23 February 2021. This relates back to the Supreme Court’s judgement in the case of Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs2 , in which it was concluded that certain provisions of the SIA are incompatible with Articles 6 and 14 of the European Convention on Human Rights. The answer to the Parliamentary question stated that the government has decided to address the incompatibility by way of Remedial Order which was to be laid in draft before Parliament in due course. I invited the parties’ comments as to the future progress of the case, including whether there should be a stay generally pending the coming into force of the Order.

[27]Neither Ms Mayhew nor I are aware of the draft Remedial Order even being laid before Parliament (and no representations were received on the point on behalf of the Claimant before her solicitor came off the record). Given the length of time that it is likely to take to effect service on the Respondent through the FCDO, it seems to me that this is an issue that can be revisited if necessary once that has been achieved and if the Respondent asserts state immunity at that point, as it has stated it intends to. Just as I have made no finding as to whether or not the Respondent has submitted to the Tribunal’s jurisdiction through its correspondence (and attachments), nor have I made any finding as to whether the incompatibility findings in Benkharbouche are relevant to this Claimant, in light of her “role as an adviser working on behalf of a political subdivision of a contracting State” (as it was termed in the submissions made on her behalf in September 2020). It did not seem to me necessary, desirable, or in accordance with the overriding objective, to stay the proceedings at this point.

Findings of Fact

[28]In her role, the Claimant had access to confidential information about the commodity markets and financial information about the Cote D’Ivoire. As she attended meetings of Commodities Organisations, she had confidential information on matters which would have an impact on the market price of the commodity. Personal Injury

[29]The Claimant presented her claim on 10 June 2019. The attachment to it, which was prepared when she was represented by solicitors, did not mention a claim for personal injury.

[30]The Claimant set out the legal basis of her claim in paragraphs [13-18] of the grounds of complaint. In that section, the Claimant pleaded unlawful discrimination, including harassment, and unfair dismissal. She said that the treatment had caused her to be “humiliated and frustrated” [18].

[31]During the time when the Claimant was legally represented, she did not seek an award for personal injury at the previous remedy hearing in this case. At paragraph 2 of her statement prepared for that remedy hearing, the Claimant stated that she was seeking compensation and an award for injury to feelings, p84A-84D. In her schedule of loss, the Claimant sought financial compensation and compensation for injury to feelings, but not damages for personal injury, p84E-84H. No award for personal injury was made in the previous remedy judgment, p24-6. History of the Respondent’s Engagement in the Proceedings

[32]After the Claimant presented her claim on 10 June 2019, it was served by the Tribunal in the usual way by sending a copy in the post to the address, in London, given by the Claimant on the claim form.

[33]The Respondent did not enter a response and judgment in default was entered on 25 February 2020. A remedy hearing took place on 8 July 2020 (by CVP), when the Respondent did not appear and was not represented. A remedy judgment was promulgated on 19 October 2020.

[34]The Respondent sought a reconsideration hearing by letters dated 4 and 11 December 2020, pp162-3 and 165-8.

[35]By its letter of 4 December 2020, it said that it had not received the proceedings and had previously been unaware of them. It enclosed a draft Response, which it said showed that there were, “both substantive and arguable, legal and evidential reasons being raised on behalf of the Respondent in defence of the Claimant's claims” p163.

[36]In its letter of 11 December 2020, the Respondent again asserted that it had not been aware of the claim and asserted state immunity, saying that it did not submit to the jurisdiction, p167. It repeated that position by letter of 23 December 2020.

[37]A reconsideration hearing was listed. For the purposes of that hearing, the Respondent presented a witness statement from Ambassador Aly Toure. That 7 ph outcome jment and case mngmnt 1.5.14 version witness statement set out his account of the facts of the Claimant’s dismissal and his interactions with her. It denied the allegations of discrimination and harassment the Claimant had made in her claim, pp125 – 129.

[38]In her reconsideration judgment, sent to the parties on 1 March 2022, EJ Norris decided that the Respondent was part of the State of Cote D’Ivoire under either section 14(b) or (c) of the State Immunity Act and that the Tribunal was obliged to follow the specific rules for service of the claim under s12 SIA. The proceedings were the served via the FCDO on 28 September 2022 on the Cote D’Ivoire Ministry of Foreign Affairs.

[39]As stated above, when the proceedings were validly served on the Respondent through the FCDO under s12 SIA, the Respondent asserted State Immunity. It did not make any substantive response to the claim. Discussion and Decisions

[40]Given the complexity of the issues and the law, I have addressed the issues in turn, and the law in relation to each issue. I did, however, take into account all the relevant law and facts when coming to my conclusions.

[41]It was sensible to deal with the issue of submission to the jurisdiction first, as the other issues would not arise if the Respondent had submitted to the jurisdiction. Issue: Did the Respondent submit to the jurisdiction under s2 SIA 1978, so that it is not immune in respect of these proceedings? Submission to the Jurisdiction -

Law

[42]Section 1 State Immunity Act 1978 (‘SIA’) provides, “(1)(1) A State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this Part of this Act. (2) A court shall give effect to the immunity conferred by this section even though the State does not appear in the proceedings in question.”

[43]By s22 of the 1978 Act ‘court’ includes ‘any tribunal’.

[44]S2 SIA provides that a State is not immune if it submits to the jurisdiction of the United Kingdom’s courts: “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 8 ph outcome jment and case mngmnt 1.5.14 version (b) subject to subsections (4) and (5) below, if it has intervened or taken any step in the proceedings.

(4) Subsection (3)(b) above does not apply to intervention or any step taken for the purpose only of— (a) claiming immunity; or (b) asserting an interest in property in circumstances such that the State would have been entitled to immunity if the proceedings had been brought against it.

(5) subsection (3)(b) above does not apply to any step taken by the State in ignorance of facts entitling it to immunity if those facts could not reasonably have been ascertained and immunity is claimed as soon as reasonably practicable. … (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.”

[45]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.”

[46]By s12 SIA 1978,

[47]“12 Service of process and judgments in default of appearance. (1)Any writ or other document required to be served for instituting proceedings against a State shall be served by being transmitted through the Foreign, Commonwealth and Development Office to the Ministry of Foreign Affairs of the State and service shall be deemed to have been effected when the writ or document is received at the Ministry. …”. Decision – No Submission to the Jurisdiction 9 ph outcome jment and case mngmnt 1.5.14 version

[48]I accepted the Respondent’s submission that, on the wording of s12 SIA, proceedings against the Respondent were not instituted until they had been served by being transmitted through the Foreign, Commonwealth and Development Office to the Ministry of Foreign Affairs of the Cote D’Ivoire. That is because s12 provides, “Any writ or other document required to be served for instituting proceedings against a State shall be served…”. I conclude that the words “required to be served for instituting proceedings” indicate that an originating document needs to be served, in order to institute proceedings.

[49]I note that r8 ET Rules of Procedure 2013 provides, “A claim shall be started by presenting a completed form (using a prescribe form)…”. Under the normal rules of procedure in the Tribunal, therefore, it appears that proceedings are started when the Claimant presents a completed ET1 form.

[50]However, by s1 SIA 1978, which is primary legislation implementing international law, the Tribunal is obliged to give effect to the immunity provisions contained in Part 1 of the SIA 1978. Part 1 SIA comprises all of ss 1 – 18 SIA. As such, I consider that the Tribunal is obliged to give effect to s12 SIA and that the provisions of s12 therefore override the normal ET rules concerning institution of proceedings.

[51]As a result, no proceedings were instituted against the Respondent until it was served by the FCDO on 28 September 2022. That being the case, I have concluded that the Respondent could not have taken any step in proceedings which had not been instituted before then. As a result, its draft ET3 response, sent to the Claimant and Tribunal in 2020 and Ambassador Toure’s witness statement for the reconsideration hearing, did not constitute a step in the proceedings.

[52]After service by the FCDO, the Respondent only participated in the proceedings for the purpose of asserting State Immunity. It did not, after that date, make any defence or assertions on the substantive merits of the claim. By s2(4) SIA, a state does not submit to the jurisdiction if it takes a step for the purpose only of claiming immunity.

[53]Accordingly, the Respondent has not submitted to the jurisdiction of the Tribunal. Issue: Under s4(2) (a) SIA 1978, at the time when the proceedings were brought, was the a national of the State concerned; so that s4 SIA does not apply to the claim and s1 SIA applies to bar the claim; or Under 4(3) SIA 1978, was the Claimant’s work for an office, agency or establishment maintained by the State in the United Kingdom for commercial purposes (so that s4(2)(a) SIA does not exclude the application of s4), but was the individual, at the time when the contract was made, habitually resident in that State, so that s4(3) SIA does not apply? Law - State Immunity in Employment Contracts

[54]Regarding employment claims, s4 SIA provides, “4 Contracts of employment. 10 ph outcome jment and case mngmnt 1.5.14 version(1) A State is not immune as respects proceedings relating to a contract of employment between the State and an individual where the contract was made in the United Kingdom or the work is to be wholly or partly performed there.

(2) Subject to subsections (3) and (4) below, this section does not apply if— (a) at the time when the proceedings are brought the individual is a national of the State concerned; or (b) the State concerned is a party to the European Convention on State Immunity and] at the time when the contract was made the individual was neither a national of the United Kingdom nor habitually resident there; or (c) the parties to the contract have otherwise agreed in writing.

(3) Where the work is for an office, agency or establishment maintained by the State in the United Kingdom for commercial purposes, subsection (2)(a) and (b) above do not exclude the application of this section unless the individual was, at the time when the contract was made, habitually resident in that State.

(4) Subsection (2)(c) above does not exclude the application of this section where the law of the United Kingdom requires the proceedings to be brought before a court of the United Kingdom.”

[55]A S17(1) SIA 1978 provides: “In this Part of this Act “commercial purposes” means purposes of such transactions or activities as are mentioned in section 3(3) above”.

[56]S3(3) SIA 1978 provides: “In this section “commercial transaction” means—(a) any contract for the supply of goods or services;

(b) any loan or other transaction for the provision of finance and any guarantee or indemnity in respect of any such transaction or of any other financial obligation; and

(c) any other transaction or activity (whether of a commercial, industrial, financial, professional or other similar character) into which a State enters or in which it engages otherwise than in the exercise of sovereign authority; but neither paragraph of subsection (1) above applies to a contract of employment between a State and an individual.”

[57]In Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs; Secretary of State for Commonwealth Affairs and Libya v Janah,

[2018] IRLR 123

[2017] ICR 1327

, the Supreme Court decided that the doctrine of state immunity in international law applied only sovereign acts, not private acts, of the foreign state concerned. “The rule of customary international law is that a state is entitled to immunity only in respect of acts done in the exercise of sovereign authority” [37].

[58]The Supreme Court 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 the wording of ss 4(2)(b) and 16(1)(a) State Immunity Act 1978, as then drafted, was inconsistent with

art 6 European Convention on Human Rights

, and art 47 Charter of Fundamental Rights of the EU. 11 ph outcome jment and case mngmnt 1.5.14 version

[59]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.

[60]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)).

[61]In The Kingdom of Spain v Lorenzo

[2023] EAT 153

, the EAT confirmed at [45]- [48] that s4(2)(a) SIA 1978 does not reflect any rule of customary international law. The Claimant in that case was a dual national of Spain and the UK. The EAT found that the Tribunal was entitled to disapply s4(2)(a) SIA, because a conflict between EU law (here, Article 47 of the Charter) and English domestic law must be resolved in favour of the former. The EAT therefore found that, in the same way as the Supreme Court in Benkharbouche disapplied ss 4(2)(b) and 16(1)(a) SIA, s 4(1)(a) SIA must also be disapplied to the extent the underlying employment claims were derived from EU law, as there was no evidence of a customary rule justifying departure from the restrictive doctrine (see [48]).

[62]That finding is binding on this Tribunal and the Tribunal is obliged to find that there is no binding principle of customary international law which justifies s4(2)(a) SIA.

[63]By virtue of s3(1) HRA 1998, the Tribunal must read and give effect to s4 SIA 1978 in a way that avoids breaching the Claimant’s Art 6 rights, “so far as it is possible to do so”.

[64]In the Court of Appeal hearing in Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs; Secretary of State for Foreign and Commonwealth Affairs and Libya v Janah

[2015] EWCA Civ 33

, the Court of Appeal held at [67] “The President of the Employment Appeal Tribunal considered that the wording of sections 4 and 16 SIA could not be read down pursuant to the interpretative obligation imposed by section 3(1) HRA. That subsection provides: “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.” The judge considered (at [40]) that the Parliamentary intent expressed in the SIA was to confer immunity subject to specific exceptions. In his view the Act was framed so as to create a careful, detailed and clear pattern which balances considerations known to the legislature. He considered that if a court or tribunal were to alter the width of a provision limiting an exception to immunity (section 4(2)) or of a clear statement that section 4 does not apply to particular people (section 16) there would be a danger of its affecting the overall balance struck by the legislature whilst lacking Parliament’s panoramic vision across the whole of the landscape. We agree. Any attempt to read down these provisions so as to remove immunity would be to adopt meanings inconsistent with fundamental features of the legislative scheme. (See, generally, Ghaidan v. Godin-Mendoza

[2004] 2 AC 557

per Lord Nicholls at [33], per Lord Millett at [63], per Lord Rodger of Earlsferry at [121].) On these appeals, Mr. Otty has not sought to persuade us to the contrary.” 12 ph outcome jment and case mngmnt 1.5.14 version

[65]See further below for 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

Decision – s4(2)(a) SIA does not Bar the Claimant’s EU Law Complaints

[66]The Claimant is and has been, at all times during these proceedings, a national of the Cote D’Ivoire.

[67]She brings complaints based on European Law (discrimination complaints), as well as an unfair dismissal complaint based on UK Law. Her claims were presented in 2019, before IP completion day, so Art 47 Charter of Fundamental Rights of the EU continues to apply to her claim.

[68]The EAT has decided in The Kingdom of Spain v Lorenzo

[2023] EAT 153

- another case involving a dual national of the UK and the State asserting State Immunity - that s4(2)(a) SIA 1978 does not reflect any rule of customary international law and that the Tribunal is required to disapply s4(2)(a) SIA, by reference to Article 47 EU Charter, in the same way as the Supreme Court in Benkharbouche disapplied ss 4(2)(b) and 16(1)(a), to the extent the underlying employment claims are derived from EU law.

[69]I am bound by the decision in Lorenzo and, in relation to the Claimant’s discrimination complaints, she is entitled to rely on Art 47 to bring those claims to the Tribunal.

[70]In relation to her unfair dismissal claim, and any claim under UK law, however, I consider that s4(2)(a) SIA, is in plain terms and makes no exceptions.

[71]I acknowledge that the Tribunal must read and give effect to s4 SIA 1978 in a way that avoids breaching the Claimant’s Art 6 rights, “so far as it is possible to do so”. However, I consider that to read s4(2)(a) SIA in order to carve out an exception to it, for dual nationals also of the host state, does not “go with the grain of the legislation.” I consider that I am bound by the EAT and CA in Benkharbouche on this point. I note, in particular, that the Court of Appeal said at [67], of s4(2) SIA, “Any attempt to read down these provisions so as to remove immunity would be to adopt meanings inconsistent with fundamental features of the legislative scheme.”

[72]The Claimant’s UK law claims are therefore barred by s4(2)(a) SIA.

[73]I do not consider that s4(3) SIA disapplies state immunity in relation to her UK law complaints. The Claimant worked for the Permanent Representation Of Cote D'Ivoire To International Commodity Organisations, which may well be an ‘office’ of the Cote D’Ivoire (albeit not a separate entity). However, on my findings of fact, the Permanent Representation Of Cote D'Ivoire To International Commodity Organisations engages in intergovernmental level discussions and is not for commercial purposes. Its purpose is not to engage in commercial transactions. It does enter into contracts for the supply of goods or services, nor loans or other transactions for the provision of finance or other financial obligations, nor other industrial, financial, professional transactions. The Claimant did not suggest that it did. Accordingly, the Claimant’s work was not for “…an office, agency or 13 ph outcome jment and case mngmnt 1.5.14 version establishment maintained by the State in the United Kingdom for commercial purposes” and s4(3) SIA does not apply to her claim.

[74]Subject to whether the Claimant’s employment itself was an exercise of sovereign authority under s16 SIA, therefore, her discrimination claims are not barred by state immunity, but her UK law based claims are barred. Issues: The Claimant was employed as a member of the Respondent’s technical and administrative staff, but was her employment an exercise of sovereign authority so as to be barred by state immunity under international law? What functions was the Claimant employed to perform? Were the functions which the Claimant was employed to perform sufficiently close to the governmental functions of the mission that her employment was an inherently sovereign or governmental act? Law

[75]Regarding diplomats and those employed by diplomatic missions, s16 SIA provides, “16 Excluded matters. (1) This Part of this Act does not affect any immunity or privilege conferred by the Diplomatic Privileges Act 1964 or the Consular Relations Act 1968; and— (a) section 4 above does not apply to proceedings relating to a contract of employment between a State and an individual if the individual is or was employed under the contract as a diplomatic agent or consular officer; (aa) section 4 above does not apply to proceedings relating to a contract of employment between a State and an individual if the individual is or was employed under the contract as a member of a diplomatic mission (other than a diplomatic agent) or as a member of a consular post (other than a consular officer) and either— (i) the State entered into the contract in the exercise of sovereign authority; or (ii) the State engaged in the conduct complained of in the exercise of sovereign authority;] …”

[76]These provisions of ss4 and 16 State Immunity Act 1978 are as amended by the State Immunity Act 1978 (Remedial) Order 2023, which came into force 23 February 2023.

[77]The amendments were intended to give effect to the Supreme Court judgement in Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs; Secretary of State for Foreign and Commonwealth Affairs and Libya v Janah,

[2018] IRLR 123

[2017] ICR 1327

. In that case, the Supreme Court decided that the doctrine of state immunity in international law applied only sovereign acts, not private acts, of the foreign state concerned. 14 ph outcome jment and case mngmnt 1.5.14 version

[78]As a result of the amendments to s16 SIA, employees of a foreign Embassy in the UK are generally no longer be barred from bringing any type of employment claim against their employing State, so long as the employee is not a diplomatic agent or consular officer, or the employment was not entered into in the exercise of sovereign authority, or the conduct complained of was not an act of sovereign authority. Law - Employment Entered into in the Exercise of Sovereign Authority

[79]As stated, in Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs; Secretary of State for Commonwealth Affairs and Libya v Janah,

[2018] IRLR 123

[2017] ICR 1327

[80]In general, 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].

[81]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.”

[82]Article 3 VCDR sets out the essential functions of a diplomatic mission, and performance of any of the Article 3 functions constitutes acts done in the exercise of sovereign authority “Article 3 1. The functions of a diplomatic mission consist, inter alia, in: 15 ph outcome jment and case mngmnt 1.5.14 version(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;

(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.”

[83]In The Royal Embassy of Saudi Arabia (Cultural Bureau) v Alhayali

[2023] EAT 149

per Bourne J, the EAT said that, in deciding whether employment of a member of embassy staff was an exercise of sovereign authority, the Tribunal must clearly identify any sovereign activity in order to decide whether the Claimant’s work was sufficiently close to it [90].

[84]The EAT also held that the test for s16(1)(aa)(i) was whether the employee’s work was “sufficiently close” to the exercise of sovereign authority, which could be contrasted with work which was “purely collateral to the exercise of sovereign authority”: [92]-[93]. It held that not all of an employee’s tasks have to meet the section 16(1)(aa)(i) test. It is sufficient if “some of the claimant’s activities throughout the period of her employment passed the test”: [96]-[97]. Decision - Employment Entered into in the Exercise of Sovereign Authority

[85]The Claimant was employed by the Permanent Representation Of Cote D'Ivoire To International Commodity Organisations. In a judgment which has not been appealed, EJ Norris decided, at paragraphs [11] – [15], that the Permanent Representation was an emanation of the state pursuant to section 14 SIA. In doing so, she said that she accepted the Respondent’s arguments, which she said were not factually contested by the Claimant. The Respondent’s argument included the following 85.1. “the Respondent is a body representing “the commercial and economic interests of Côte d’Ivoire in the United Kingdom”. 85.2. “… the Respondent is a diplomatic mission based in the United Kingdom.” 85.3. “ … the Respondent appears on the London Diplomatic List for 2021 under the heading “Embassy of the Republic of Côte d’Ivoire”.” 85.4. “ … the Respondent appeared on the London Diplomatic List in 2013, which was before the Claimant started to work there.”

[86]EJ Norris has therefore found, in these proceedings, that the Claimant was employed in an organisation which is a diplomatic mission based in the United Kingdom. The Claimant therefore comes within s16(1)(aa) SIA as “a member of a diplomatic mission (other than a diplomatic agent)”. 16 ph outcome jment and case mngmnt 1.5.14 version

[87]As a result, she cannot bring a claim relying on s4 SIA if her employment contract was entered into the contract in the exercise of sovereign authority. Whether it was will depend on the functions which she was employed to perform – Benkharbouche [54].

[88]On my findings of fact, the Claimant was employed as an Adviser to Ambassador Toure, who is the Permanent Representative of Cote d’Ivoire in the United Kingdom.

[89]She was a member of the Respondent’s administrative and technical staff, so the issue for me was whether her functions were sufficiently close to the governmental functions of the mission that her employment was an exercise of sovereign authority.

[90]The Permanent Representation of Cote d’Ivoire in the United Kingdom is the interface, or intermediary, between the Government of Cote d’Ivoire and International Commodity Organizations (ICOs), for the negotiation of international commodity agreements and the safeguarding of Cote d’Ivoire’s economic and political interests at the level of ICOs.

[91]The Permanent Representation’s functions therefore encompassed many of those in Article 3 VCDR: including(a) Representing the sending State in the receiving State – that was precisely the Permanent Representation’s function at the International Commodity Organisations in London; to represent the Cote D’Ivoire at these international, governmental level meetings;

(b) Protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law – again, that was precisely the function of the Permanent Representation and was found as a fact by EJ Norris in her reconsideration judgment;

(c) Negotiating with the Government of the receiving State – the Permanent Representation engaged in negotiations, with many governments.

[92]I decided that the Claimant was herself engaged in these functions. She did not only undertake basic functions such as answering telephone calls, ordering stationery for the office, paying the office rental and making money transfers to the Ambassador’s family and friends.

[93]Her duties included attending and taking notes of meetings of the international commodity organisation meetings and reporting back to the Ambassador on them. In that role, she was acting as the Ambassador’s “eyes and ears” in these meetings. She was undertaking at least some of the Ambassador’s tasks. As Lord Sumption said in Benkharbouche, every aspect of the employment of a diplomatic agent is therefore likely to be an exercise of sovereign authority. As the Claimant was undertaking some of the Ambassador’s tasks, she was undertaking sovereign functions. In taking a note of meetings and reporting back to the Ambassador, she was involved in the protecting the interests of the Cote d’Ivoire.

[94]She discussed with Ambassador Toure which other States’ candidates he would support for the presidency of these organisations, and the Cote D’Ivoire’s strategy in supporting these candidates, to protect the Core D’Ivoire’s interests. I decided 17 ph outcome jment and case mngmnt 1.5.14 version that, in doing so, her functions were not merely collateral to the State’s Article 3 VCDR functions, but were part of them.

[95]In addition, when she produced a report for Ambassador Toure, to inform his annual report to the Government, which contains details of meetings of the commodity bodies and what the Ambassador proposes to the Government to protect its interests, the Claimant was, therefore, herself involved in protecting the interests of the Cote D’Ivoire.

[96]This was the more so because, in her role, the Claimant had access to confidential information about the commodity markets and financial information about the Cote D’Ivoire. She had private, governmental information about the interests of the Cote D’Ivoire which she was required to keep confidential, in order to protect its interests.

[97]I decided that the Claimant’s functions were so close to the governmental functions of the of the mission that her employment was an exercise of sovereign authority. As a result, s16(1)(aa) State Immunity Act 1978 excludes the application of s4 SIA 1978 and, therefore s1 SIA 1978 applies to bar the Claimant’s claim for state immunity. Further, under international law, the Cote D’Ivoire is entitled to immunity in respect of her employment, so, applying Benkharbouche, the provisions of the State Immunity Act 1978 are not inconsistent with art 47 Charter of Fundamental Rights of the EU. The Claimant cannot rely on the Charter to bring her EU law based claims to the Tribunal. Issue Do these proceedings include claims in respect of personal injury, so that the Respondent is not immune in respect of those personal injury claims? Law – Personal Injury

[98]S5 SIA provides that a State is not immune from proceedings in respect of personal injury.

[99]A claim for personal injury is different to a claim for injury to feelings. In Military Affairs Office of the Embassy of the State of Kuwait v Caramba-Coker

[2003] UKEAT 1054

the EAT held, at [16] that “if the only claim for non-pecuniary loss which Mr Caramba-Coker made in his complaint of race discrimination was for injury to his feelings, that would not amount to a claim for compensation for personal injury.”

[100]In Sayn-Wittgenstein-Sayn v His Majesty Juan Carlos Alfonson & Anor

[2022] EWCA Civ 195

the Court of Appeal rejected the proposition that pleadings which did not refer to a recognised psychiatric injury amounted to a claim for personal injury. At paragraph [74] the Court of Appeal held that, “The claim was plainly not pleaded as a personal injury claim nor were damages for personal injury claimed in the prayer. As the judge correctly held, a claim for distress and anxiety arising from an alleged course of conduct amounting to harassment is not, without more, a personal injury claim”. Decision – No Personal Injury Claim 18 ph outcome jment and case mngmnt 1.5.14 version

[101]On my findings of fact, the Claimant did not bring a personal injury claim in these proceedings. She brought a claim for an injury to feelings award only. That being the case, s5 SIA does not apply to her claim.

Conclusion

[102]The Respondent did not submit to the jurisdiction. The Claimant has not brought a personal injury claim.

[103]The Claimant has brought employment claims but the Respondent has state immunity in respect of all the Claimant’s claims. The Claimant’s functions were so close to the governmental functions of the of the mission that her employment was an exercise of sovereign authority. Her UK law based claim is barred by s1 and 16 State Immunity Act 1978 and, because a state is entitled to immunity in respect of acts done in the exercise of sovereign authority under customary international law, she cannot rely on Art 47 of the EU Charter to bring her EU law employment claims against the Respondent. The Tribunal has no jurisdiction to hear her claims. Dated: 11 September 2024