The Royal Embassy of Saudi Arabia (Cultural Bureau) v Costantine [2025] UKSC 9 (06 March 2025)

A former embassy employee brought discrimination and harassment claims against Saudi Arabia. The Supreme Court held that courts must consider State immunity even when the State fails to appear, but found the employee's administrative role was not sufficiently connected to governmental functions to warrant immunity.

Facts

Mrs Antoinette Costantine, a Lebanese and British national of Catholic Christian faith, was employed by the Royal Embassy of Saudi Arabia (Cultural Bureau) from January 2010 until January 2018. She worked initially as a Post Room Clerk and later as Secretary to Dr Nassir, Head of Cultural Affairs. Her duties involved data entry, basic secretarial functions, arranging meetings, and dealing with correspondence regarding Saudi students studying in the UK. She brought claims for direct discrimination and harassment on grounds of religious belief under the Equality Act 2010.

Employment Tribunal Proceedings

The Embassy claimed State immunity under the State Immunity Act 1978. Employment Judge Brown conducted detailed factual findings about Mrs Costantine’s role, concluding her work was ancillary and administrative rather than governmental. The Employment Tribunal found immunity did not apply.

Appeal History

The Embassy’s appeal was rejected by the Employment Appeal Tribunal. The Court of Appeal granted permission to appeal but, when the Embassy failed to attend the hearing due to its solicitors withdrawing over unpaid fees, dismissed the appeal for non-appearance without considering the immunity issue.

Issues

The Supreme Court addressed three issues: (1) whether the Court of Appeal was under a duty to consider State immunity when the appellant did not attend; (2) whether the Employment Tribunal applied the correct test for State immunity; and (3) the impact of the State Immunity Act 1978 (Remedial) Order 2023.

Judgment

The Duty Under Section 1(2)

Lord Lloyd-Jones, delivering the unanimous judgment, held that section 1(2) of the State Immunity Act 1978 imposes a mandatory duty on all courts, including appellate courts, to give effect to State immunity even when the State does not appear. The Court of Appeal erred in dismissing the appeal without first considering whether the appellant was entitled to immunity.

The Test for Immunity

Following Benkharbouche v Embassy of the Republic of Sudan [2017] UKSC 62, the Court confirmed that immunity for administrative and technical staff depends on whether their functions are sufficiently close to governmental functions of the mission. The role of such staff is essentially ancillary and supportive; immunity applies only where functions are sufficiently proximate to governmental activities.

Application to the Facts

The Employment Tribunal correctly directed itself on the law and properly applied it to the facts. Mrs Costantine’s data entry work, basic secretarial duties, and limited involvement in ceremonial events did not bring her role sufficiently close to governmental functions. Her potential access to confidential information was immaterial as she never actually accessed such material and her roles did not require her to do so.

The Conduct Complained Of

The appellant’s late argument that the conduct complained of engaged sovereign authority was rejected. There was no evidence connecting Mrs Costantine’s dismissal to matters of State security or other sovereign concerns. A claim for compensation does not restrict the State’s right to determine its employees.

Implications

This judgment clarifies that the duty under section 1(2) of the State Immunity Act 1978 applies to all courts and tribunals, including appellate courts, requiring them to consider immunity of their own motion. Courts cannot simply dismiss appeals for non-appearance where State immunity is in issue. The case confirms that administrative staff of embassies will not ordinarily attract State immunity unless their specific functions demonstrate sufficient proximity to governmental activities. The decision provides important guidance on applying the Benkharbouche principles to members of administrative and technical staff at diplomatic missions.

Verdict: Appeal dismissed. The Court of Appeal erred in failing to consider State immunity but would necessarily have concluded that the appellant was not entitled to immunity. The Employment Tribunal correctly found that the respondent's employment did not attract State immunity as her role was not sufficiently connected to governmental functions.

Source: The Royal Embassy of Saudi Arabia (Cultural Bureau) v Costantine [2025] UKSC 9 (06 March 2025)