The Claimant was employed at the Respondent’s High Commission in London. Her employer was the State of Malaysia. The ET dismissed her claim on the basis that the Respondent had state immunity pursuant to section 4(2)(a) State Immunity Act 1978 (“SIA 1978”), as she was a citizen of Malaysia and it was not possible to read down this provision so that it did not apply to individuals who are permanent residents of the United Kingdom. The ET rejected the other two grounds upon which the Respondent had claimed state immunity, finding that the Claimant’s employment was not an act of sovereign authority within the meaning of section 16(1)(aa)(i) SIA 1978 and that her claim did not involve an act engaging sovereign authority within the meaning of section 16(1)(aa)(ii) SIA 1978. The Claimant’s appeal from the ET’s conclusion in relation to section 4(2)(a) SIA 1978 was stayed, pending the Government’s response to the declaration of incompatibility made by the Court of Appeal in Spain v Lorenzo [2025] EWCA Civ 59, [2025] IRLR 296. The Respondent proposed that the EAT should hear its cross appeal at this stage, challenging the ET’s decision in respect of the section 16(1)(aa)(i) and 16(1)(aa)(ii) issues, and the Claimant did not object.

The EAT dismissed the appeal, concluding that the ET did not err in law in finding that the Claimant’s employment was not an act of sovereign authority (within the meaning of section 16(1)(aa)(i)) or in finding that the Claimant’s claim did not involve an act engaging sovereign authority (within the meaning of section 16(1)(aa)(ii)). There was no challenge to the findings of primary fact made below and the ET had correctly applied the approach identified by the Supreme Court in Benkharbouche v Embassy of the Republic of Sudan [2017] UKSC 62, [2019] AC 777, more recently endorsed in Royal Embassy of Saudi Arabia (Cultural Bureau) v Costantine [2025] UKSC 9, [2025] 1 WLR 1207.