Ms N Prempeh, Employment Consultant For the v Respondent — 2023

The tribunal at this open preliminary hearing considered whether the respondent, the Government of the State of Kuwait, had state immunity in a case brought by Mr S Mohamed. The pleaded complaints included direct age, sex and disability discrimination, associative disability discrimination, age and disability harassment, discrimination arising from disability, indirect disability discrimination and harassment, unlawful deductions from wages, holiday pay, and a claim for personal injury damages for depression arising from discrimination and harassment.

Employment Judge Brown held that the claimant's work at the Kuwaiti Health Office formed part of the embassy's functions and was sufficiently close to governmental activity to amount to an exercise of sovereign authority. The claimant had worked first as an in-house doctor and later as a medical auditor, had access to confidential patient records, and in the tribunal's view had personal responsibility for decisions affecting the health treatment of members of the Kuwaiti royal family and senior officials. Applying Benkharbouche and the restrictive doctrine of state immunity, the judge found that the employment relationship and the pleaded complaints about retirement age, health-based dismissal and the pandemic return-to-work instruction were barred by state immunity.

The tribunal nevertheless held, following Ogbonna, that it had jurisdiction under section 5 of the State Immunity Act 1978 to hear the claim for personal injury, namely depression arising from discrimination and harassment. That personal injury claim was allowed to continue. No substantive liability or remedy was determined at this hearing, and the tribunal listed the case for a later final hearing on liability and a separate remedy hearing.