The Royal Embassy of Saudi Arabia (Cultural Bureau) (Appellant) v Costantine (Respondent)

Image of Sarah Fraser Butlin KC and Tamar Burton

On 6 November 2024, Sarah Fraser Butlin KC and Tamar Burton appeared in the Supreme Court on behalf of Ms Antoinette Costantine in an appeal concerning the application of the State Immunity Act 1978 to administrative and technical workers.

Background

From 2010 to 2018 the Claimant was employed by the Kingdom of Saudi Arabia in its Cultural Bureau in London as a post room clerk and then as a secretary. She presented a claim to the employment tribunal of discrimination and harassment because of her Catholic religion. The Respondent asserted that her claim was barred on the basis of state immunity.

At a preliminary hearing in June 2021 the employment tribunal concluded that the Claimant’s employment was not an exercise of sovereign authority and therefore state immunity did not apply. Applying the Supreme Court’s decision of 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 132, the tribunal concluded that the Claimant’s employment fell within the middle category of “administrative and technical” staff and that her employment was not an exercise of sovereign authority. Therefore, it held that the Claimant’s European law claims could proceed to a final hearing.

The Respondent appealed to the EAT. The claim was rejected on the sift by Mr Mathew Gullick KC, sitting as a Deputy Judge of the High Court. At a 3(10) hearing, His Honour Judge Barklem also rejected the Respondent’s appeal.

The Respondent obtained permission from the Court of Appeal to appeal. The Claimant was successful in obtaining a costs protection order, as an individual moving from a non-costs to a costs jurisdiction. On 13 March 2024 Lord Justice Underhill, sitting with Lord Justice Warby and Lord Justice Newey, dismissed the appeal after the Appellant failed to attend court, when the Respondent’s legal representatives withdrew because they had not been paid.

The Respondent then obtained permission to appeal to the Supreme Court.

The Supreme Court

The Supreme Court appeal concerned whether the Court of Appeal was correct to dismiss the Respondent’s appeal in their absence. It also concerned whether the employment tribunal correctly applied the relevant law when the employment tribunal concluded that the Claimant’s employment was not an exercise in sovereign authority.

Judgment is awaited.

Sarah Fraser Butlin KC and Tamar Burton were instructed by Zimmers.