On 20 December 2024, the Court of Appeal dismissed Spain’s appeal, rejecting its claim to immunity from a former employee’s allegations of discrimination and constructive dismissal at its UK embassy. Significantly, the Court held that embassy roles not involving sovereign authority are not immune under the SIA. It also allowed the Claimant, a dual Spanish and British national, to proceed with her claim by invoking Benkharbouche v Embassy of the Republic of Sudan [2017] UKSC 62 to disapply section 4(2)(a) of the SIA, affirming her right to legal recourse despite her Spanish nationality.
Background:
The respondent, Ms. Lydia Lorenzo, a dual Spanish and British national, was employed at the Spanish Embassy in London from 2008 to 2011 and again from 2013 to 2015. She resigned in September 2015, alleging constructive unfair dismissal, failure to provide a written statement of employment terms, direct racial discrimination based on nationality, and harassment. Ms. Lorenzo claimed that embassy officials, particularly a senior official, made discriminatory remarks about her dual nationality, including suggestions that she could be a “double agent”, and restricted her access to certain documents and areas within the embassy.
Ms. Lorenzo contended that her treatment at the embassy constituted violations of the Equality Act 2010, asserting that the discriminatory actions were not shielded by state or diplomatic immunity. She sought redress for the alleged discrimination and unfair dismissal through the Employment Tribunal (“ET”). The Kingdom of Spain, the appellant, invoked state immunity under the SIA and diplomatic immunity under the Vienna Convention on Diplomatic Relations 1961. In terms of the state immunity issue, Spain relied on Section 4(2)(a), SIA, and submitted that Ms. Lorenzo was a Spanish national at the time the claim was brought, thereby triggering the immunity exception, preventing the UK courts from hearing the case in line with the exception under the section. Additionally, it was asserted by Spain that her employment (envisaging administrative and diplomatic functions) was closely connected to sovereign functions of the Spanish state. Secondly, in terms of the diplomatic immunity issue, Spain relied on Article 1(f) of the Vienna Convention on Diplomatic Relations 1961, arguing that the Claimant performed sovereign functions and therefore, her employment fell under Spain’s diplomatic privileges.
Court’s Decision:
The ET initially found that Spain was entitled to immunity concerning claims under the Employment Rights Act 1996 and Employment Act 2002 but rejected claims of immunity regarding allegations under the Equality Act 2010. This decision was upheld by the Employment Appeal Tribunal (“EAT”). Spain appealed to the Court of Appeal.
The Court of Appeal, comprising Lord Justice Bean, Lord Justice Baker, and Lady Justice Andrews, dismissed Spain’s appeal. The Court of Appeal, building on established case law, upheld decisions by the ET and EAT, finding against Spain’s claim of immunity. The Court reiterated that state immunity under the SIA is not absolute and does not extend to all employment disputes involving embassy staff. Specifically, it distinguished between sovereign and non-sovereign activities, ruling that Ms. Lorenzo’s claims fell within the latter category. The court emphasized that Ms. Lorenzo’s administrative role did not involve activities central to Spain’s sovereign functions. Instead, her allegations of discrimination and harassment related to employment matters governed by UK law, specifically the Equality Act 2010. Furthermore, the Court rejected Spain’s argument that her dual nationality and employment status inherently made her role sovereign in nature.
The Court also highlighted the significance of balancing international comity with individual rights, stressing that immunity cannot serve as a shield for foreign states to evade accountability for employment-related misconduct within the UK’s jurisdiction. Drawing from earlier judgments, including Benkharbouche, the court clarified that UK law provides robust protections against workplace discrimination, even when the employer is a foreign state.