Embassy staff in the UK have historically been unable to present claims to the Employment Tribunals in England & Wales because embassies are protected by the State Immunity Act 1978.
The Court of Appeal in Kingdom of Spain v Lorenzo has upheld that the Act should be disapplied such that Ms Lorenzo can present her discrimination claims to the Employment Tribunal.
In Kingdom of Spain v Lorenzo [2024] EWCA 1602, the Court of Appeal upheld the EAT’s decision to disapply section 4(2)(a) of the State Immunity Act 1978 (SIA 1978) in relation to employment tribunal claims for discrimination brought by a former member of the administrative staff at the Spanish Embassy. This allowed Ms Lorenzo to continue with her discrimination claims which would otherwise have been barred.
The Court of Appeal applied Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs [2017] UKSC 62, in which the Supreme Court found that section 4(2)(b) of the SIA 1978 was incompatible with Articles 6 and 14 of the European Convention on Human Rights (ECHR). The Supreme Court also confirmed that a declaration of incompatibility under the Human Rights Act 1998 (HRA 1998) was the correct remedy for breach of the ECHR. The government later rectified the incompatibility of section 4(2)(b) with the ECHR by way of the State Immunity Act 1978 (Remedial) Order 2023 (SI 2023/112).
Having determined that the Supreme Court’s rationale in Benkharbouche applied equally to section 4(2)(a) of the SIA 1978, the Court of Appeal invited separate submissions on whether to make a declaration of incompatibility under the HRA 1998 in relation to section 4(2)(a). Ms Lorenzo sought such a declaration relying on Article 6, Article 14 and Article 1 of the First Protocol of the ECHR. The Secretary of State, who did not participate in the appeal itself, argued that the declaration should be limited in terms to Article 6 only.
The court accepted the submissions of the Secretary of State and made a declaration that section 4(2)(a) of the SIA 1978 is incompatible with Article 6. It gave no advice on what needs to be done to bring section 4(2)(a) into line with the ECHR.
The Court of Appeal is now considering whether to grant a declaration of incompatibility for section 4(2)(a) of the State Immunity Act 1978. In the meantime, the declaration does not affect the validity, continuing operation or enforcement of section 4(2)(a) of the SIA 1978.
