“150. I accepted the Claimant’s evidence regarding her job responsibilities and found that that between January 2013 and30 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. From30 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. Between30 July 2015 to September 2017 the Claimant proofread articles submitted to the Al-Thaqafia magazine (a cultural journal), which the Embassy 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 on18 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.”
“53. As a matter of customary international law, if an employment claim arises out of an inherently sovereign or governmental act of the foreign state, the latter is immune. It is not always easy to determine which aspects of the facts giving rise to the claim are decisive of its correct categorisation, and the courts have understandably avoided overprecise prescription. The most satisfactory general statement is that of Lord Wilberforce in The I Congreso [1983 1 AC 244 at p 267: “The conclusion which emerges is that in considering, under the ‘restrictive’ theory whether state immunity should be granted or not, the court must consider the whole context in which the claim against the state is made, with a view to deciding whether the relevant act(s) upon which the claim is based, should, in that context, be considered as fairly within an area of activity, trading or commercial, or otherwise of a private law character, in which the state has chosen to engage, or whether the relevant act(s) should be considered as having been done outside that area, and within the sphere of governmental or sovereign activity.” 54. In the great majority of cases arising from contract, including employment cases, the categorisation will depend on the nature of the relationship between the parties to which the contract gives rise. This will in turn depend on the functions which the employee is employed to perform. 55. 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[1995] 1 NZLR 426 (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.” “The conclusion which emerges is that in considering, under the ‘restrictive’ theory whether state immunity should be granted or not, the court must consider the whole context in which the claim against the state is made, with a view to deciding whether the relevant act(s) upon which the claim is based, should, in that context, be considered as fairly within an area of activity, trading or commercial, or otherwise of a private law character, in which the state has chosen to engage, or whether the relevant act(s) should be considered as having been done outside that area, and within the sphere of governmental or sovereign activity.”
“56. This approach is supported by the case law of the European Court of Human Rights, which I have already summarised. In[four cases, including Cudak v Lithuania] 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. In Mahamdia v People’s Democratic Republic of Algeria (Case C-154/11 )[2013] ICR 1 , para 55-57, the Court of Justice of the European Union applied the same test, holding that the state is not immune “where the functions carried out by the employee do not fall within the exercise of public powers.”
“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. 185. Her role did not comprise “all typing and secretarial services necessary to operate”
“87. Whichever side of the line this case falls upon, it is close to the boundary. The answer is not obvious, as it would be for cleaning staff on the one hand or perhaps for some senior managers on the other. It was therefore a relatively difficult case to decide. 88. I also consider that, once a tribunal has made findings of fact about the duties of the employee in question, there can logically be only one right answer to the question as a matter of law. It has been suggested that two different EJs could validly arrive at different conclusions on the same facts, but in my judgment that cannot be right. Sovereign immunity removes the tribunal’s jurisdiction. That cannot be done as a matter of individual impression, let alone discretion. So, although I agree that two EJs could reasonably disagree about the answer in a borderline case, it seems to me that one of those judges would be right, and the other wrong, as a matter of law. 89. I am therefore in no doubt that both grounds 2 and 3 raise a genuine issue of law. EJ Brown’s findings of fact cannot be disturbed. Her conclusion based on those facts was either legally right or legally wrong. 90. It was first necessary to decide whether functions of a sovereign kind were being discharged at all. The EJ was slightly non-committal, saying at [183] that “the functions of the Respondent itself may have been inherently governmental”
“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, 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.” 95. That bare description may invite some comparison with the present case but, given the lack of detail, caution is needed and previous cases should not simply be used as precedents (see Holland above). We do not know what “providing information” or assisting with event organisation actually consisted of. And the final sentence of the quotation above suggests that a lack of evidence was material to the outcome. So I am not convinced that the comparison with Cudak was directly helpful. 96. In fairness to the EJ, it seems clear that some of the Claimant’s activities, such as inputting information to a computer system, were of a purely clerical nature and purely collateral to any exercise of sovereign authority. 97. However, on the EJ’s findings of fact, I have concluded that when the correct test of “sufficiently close” rather than “ancillary and supportive” is applied, in the context of what was an exercise of sovereign authority by the Embassy of a kind contemplated by the Vienna Convention, some of the Claimant’s activities throughout the period of her employment passed the test. By sifting compliant and non-compliant guarantee requests, writing reports on funding requests and discussing art exhibits with visitors and British students and teachers, she played a part, even if only a small one, in protecting the interests of the Saudi state and its nationals in the UK and in promoting Saudi culture in the UK. To put it another way (reflecting French case law to which Lord Sumption referred in Benkharbouche at [56]), she was participating in the public service of the Embassy and not merely in the private administration of the Embassy. 98. I therefore conclude that ground 3 succeeds although, as I have said, this was a borderline and difficult case and it appears that the EJ was not greatly assisted by witness evidence called on behalf of the Respondent which she found to be unreliable. 99. I also allow the appeal on ground 2 on the basis that a lack of precision in the terminology of the analysis contributed to what I have found to be a legally erroneous outcome. 100. For the reasons I have explained above, there can be only one correct legal outcome on the EJ’s findings of fact, and therefore there is no scope for remitting this issue to the ET.”
“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 inArticle 3 of the Convention on Diplomatic Relations, her employment was an exercise of sovereign authority.”
“The test was not whether the Claimant’s work was ancillary and supportive to the exercise of sovereign authority. It was whether her ancillary and supportive work was sufficiently close to that exercise.”
“In BenkharboucheLord Sumption distinguished between three types of employees in diplomatic missions; those who have inherently governmental function at one end and those whose domestic duties are inevitably private. In the middle there are technical and administrative roles that may, or may not, be sovereign or governmental. Determining which side of the line an employee in the middle category falls is inherently a matter of factual assessment that is for the employment tribunal.”
“... we confirm [that] 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 EU law (as reflected in paragraph 8(c) of the existing Grounds of Resistance).”
“I cannot believe that the Respondent submitted to the jurisdiction on9 April 2019 and continued to do so for more than two years without the ambassador being aware of this and having agreed to it. I decide that the Respondent submitted to the jurisdiction in respect of the Claimant’s EU law derived claims and the head of mission or his deputy authorised this.”
“56. ... the fact that the step in proceedings alleged to constitute the waiver is taken by solicitors instructed by the Embassy does not conclude the matter. A solicitor acting without authority cannot waive the immunity. A solicitor’s actions establish a waiver only if they have been authorized by the state, which includes authority exercised or conferred by the State’s diplomatic mission. That would include a step authorized by the head of mission himself or herself. Authority may be confirmed on the solicitors either directly or in my view indirectly by a member of the mission authorized by the head of mission to do so. ... 58. I do not consider that the doctrine of ostensible authority applies either to the solicitors or to Mr Alkhader or that jurisdiction can be created by an estoppel. The state has protection against unauthorised action taken by a solicitor or member of the mission. The respondents were entitled, in the circumstances, to assert before the EAT that there had been no waiver of immunity under section 2, and hence no jurisdiction because the earlier steps in the proceedings were not steps taken by the state. As already noted, it is necessary to determine the factual issue arising in order to decide whether there has been a waiver under section 2. It would be open to the fact-finding tribunal to infer from all the circumstances that Mr Alkhader was acting with the authority of the head of mission in his dealings with the solicitor and to infer that, through Mr Alkhader, the solicitor was authorised to act as he did. If that happened, the state has taken the step or steps and is deemed to have submitted. The same process of reasoning applies to the steps taken after the employment tribunal’s decision as to jurisdiction as to the steps before the decision. The court is entitled to expect that a state which does not wish to have its authorisation procedures enquired into by the fact-finding tribunal will put in place readily ascertainable procedures for waiver.”
“… 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 is a theoretical difficulty. I do not think any person, even 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.”