Matt Jackson represents Claimant in Kingdom of Spain v Lorenzo [2023]
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The Employment Appeal Tribunal gave judgment in this case on 12th December 2023.
For those employment cases where the EU Charter of Fundamental still applies, it confirms that section 4 (2) (a) of the State Immunity Act 1978 (barring claims where the Claimant is a national of the state who is the Defendant/Respondent) is to be disapplied where an alleged act of discrimination does not fall within the definition of a “sovereign act”. The case also lays down a rule that a state may not rely on the immunity of its diplomats to shield the state from a claim.
Ms Lorenzo, a dual British/Spanish citizen, brought claims of race discrimination against the Kingdom of Spain for her alleged treatment during employment at the Spanish Embassy in London. There has not yet been a trial. Spain applied to strike out the claims on the basis that it was immune from being sued because of the State Immunity Act 1978. Section 4 (2) (a) says that, subject to exceptions, a state other than the UK may not be sued in an employment tribunal where the Claimant is a national of the foreign state being sued. In the earlier case of Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs [2017] UKSC 62, the Supreme Court had decided that another part of subsection 4 (2) (paragraph (b) – Claimant was neither a national of the UK nor habitually resident there – this has since been amended) infringed both Article 6 of the European Convention on Human Rights and Article 47 of the EU Charter of Fundamental Rights. Both provide for the right to a fair trial.
One of the individuals names by Ms Lorenzo as having subjected her to discrimination was formally a diplomat who benefited from diplomatic immunity against being added as an individual respondent. Spain argued that (in summary):
Because the diplomat was immune from suit, Spain ought to be able to benefit from that immunity;
That the acts of the diplomat ought to have been treated as a “sovereign act” and so subject to state immunity; and,
That section 4 (2) (a) did not infringe Articles 6 & 47, but that if it did, the EAT should not disapply the provision under retain EU Law rules.
The EAT (Mrs Justice Ellenbogen) rejected those arguments holding that: diplomatic immunity and state immunity came from separate sources and did not overlap; the Employment Tribunal was entitled to find that the acts of alleged discrimination were not “sovereign acts”; and, that section 4 (2) (a) did infringe the right to a fair trial and that the Employment Tribunal was right to disapply the section to allow the claim to continue.
As noted above, section 4 (2) (b) was amended by The State Immunity Act 1978 (Remedial) Order 2023. It changed paragraph (b) following the Benkharbouche case so that the immunity applies where the foreign state was a party to the European Convention on State Immunity (“ECSI”) that might give rise to state immunity. It remains a possibility that the order was ultra vires in making that amendment due to the findings of the Supreme Court in Benkharbouche that the ECSI did not necessarily reflect customary international law.
Ms Lorenzo’s case will now continue in the Employment Tribunal.