Both claimants were employed on US air force bases in the UK and had made claims relating mainly to health issues. At a preliminary hearing the employment judge found that state immunity applied and dismissed any claims. The claimants appealed arguing, broadly, that the work they carried out did not involve any judicial investigation of US policies or security.

In the appeal, HHJ Tayler reviews the law around state immunity and the relevant case law, in particular the Supreme Court decision in Benkharbouche. In that case it was decided that domestic staff were not engaged in sovereign or governmental functions: in fact their domestic duties were incapable of being so. The test, Lord Sumption stated in Benkharbouche, is to look at what role the employee actually carries out, not what their job title might be. At [43] HHJ Tayler states

“In Benkharbouche Lord 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. The roles and functions undertaken by the claimants put them in this middle territory. I do not consider that the claimants are able to establish that the employment judge erred in his analysis of whether state immunity applied. He reached a factual determination that was open to him.”

The judge, while sympathetic to the claimants, dismisses the appeals as the ET had not erred in law and

“where state immunity applies it is because it is not the business of judges of one sovereign state to adjudicate on the actions of another sovereign state.”