Having (through its then solicitors) accepted the jurisdiction of the ET over claims derived from EU law, the Respondent subsequently sought to reassert state immunity, relying on an official stamped (but unsigned) statement from the Embassy stating that no authority had been given to the former solicitors to waive state immunity. The ET concluded, however, that the Respondent had validly submitted to its jurisdiction, going on to find that the Claimant’s employment was not an exercise of sovereign authority, nor were acts of sovereign authority pleaded to which state immunity could attach. In the alternative, the ET found that pursuant to section 5 of the State Immunity Act 1978 (SIA) state immunity would be disapplied in respect of the Claimant’s claim that the Respondent caused her psychiatric injury, this being a claim for personal injury. The Respondent appealed.

The EAT allowed the appeal. The fact that a statement had been produced by the Embassy did not mean that the ET was bound to accept its content; however, in this case the ET had in failing to give the statement any weight. Furthermore, when considering whether the functions performed by the Claimant fell within the sphere of sovereign activity, the ET’s analysis had lacked precision and had elided the questions it was required to consider (Benkharbouche v Embassy of Sudan [2017] ICR 1327 SC and the provisions of the State Immunity Act 1978 (Remedial) Order 2023 applied). Applying the correct test to the ET’s findings of fact, it was apparent that the Claimant was participating in the public service of the Embassy, not merely its private administration. As there could only be one correct legal outcome on the ET’s findings of fact, there was no scope for remitting this issue and, in this respect, its decision on sovereign immunity must be set aside. That said, there was no basis for considering that the case of Federal Republic of Nigeria v Ogbonna [2012] 1 WLR 139 EAT had been wrongly decided and the ET had not erred in following and applying that decision, holding that section 5 SIA disapplied sovereign immunity in respect of the Claimant’s claim for psychiatric injury.