Ms. Costantine initially brought a claim in the Employment Tribunal, which dismissed the Royal Embassy of Saudi Arabia (Cultural Bureau)’s assertion of State immunity. The Cultural Bureau appealed all the way to the Supreme Court, which held: (1) English courts have a duty under Section 1(2) of the State Immunity Act 1978 (“SIA”) to consider whether a State is immune from jurisdiction notwithstanding the failure of that State to attend the hearing; and (2) in the present case, State immunity did not apply since Ms Costantine’s job functions did not include personal involvement in the diplomatic or political operations of the mission.
Background
Ms. Costantine was initially employed between 2010 and 2016 as a post room clerk based in the Administrative Affairs Department. From 2012, she was given the job title of “student coordinator for health affairs”. From 6 June 2016 to September 2017, she worked as Secretary to the Head of the Cultural Affairs Department. She was then transferred to the Administrative Affairs Department as a post room clerk. Her employment ended on 17 January 2018.
Ms. Costantine’s duties as a post room clerk were primarily data entry. Although she technically had system access to sensitive data (e.g., medical records of Saudi students), she was unaware of this access and never used it. She did not open or process mail, nor did she register all incoming/outgoing correspondence. Ms. Costantine performed basic secretarial tasks. She did not have access to the diary of the Head of the Cultural Affairs Department. Her office access was limited to delivering refreshments. While it was possible she dealt with children of officials or Royal family members, her involvement was strictly administrative, limited to arranging university study and payments. The Embassy was not represented at and did not attend the appeal hearing.
Court’s decision:
The Supreme Court considered inter alia: (1) whether the Court of Appeal was under a duty to consider State immunity where the State did not attend the appeal; and (2) whether the State immunity should be applicable in the present case.
On the first point, the Supreme Court held that English courts are obliged under S.1(2) of the SIA to assess the claimed immunity, even without the State’s attendance in circumstances which were “regrettable”. If necessary to decide the issue fairly, the lower court should have granted an adjournment to allow proper argument—potentially with the assistance of an advocate to the court.
On the second, applying the test in its previous decision in Benkharbouche (which the court noted accurately reflects the position in customary international law and was made subject of a Remedial Order on 2 February 2023), the Supreme Court held that, although Ms. Costantine was able to access confidential information in her role, she was unaware she could do so and nor did she do so. Ms. Costantine genuinely believed the Cultural Bureau dealt only with student affairs, not sensitive government matters. While she may have accessed contact and ID details of officials and Royal attendees for event planning between 2012 and 2015, the lower courts correctly concluded this did not place her role close to governmental functions. Thus, Ms. Costantine did not the exercise sovereign authority in her role and State immunity did not apply.