In person For the v Respondent — 2021

The claimant was recruited to the Spanish Embassy in London in about January 2008. The tribunal recorded that she first worked as the Ambassador’s Social Secretary, later returned in 2013 as an Administrative Assistant, and at one point acted up as Protocol Officer. The pleaded claims were constructive unfair dismissal, failure to provide a written statement of terms and conditions, direct race discrimination because of British nationality, and harassment related to race. This hearing determined immunity issues only; it did not decide the factual merits of the discrimination allegations.

On the domestic law claims, the tribunal held that state immunity barred the Employment Rights Act 1996 and Employment Act 2002 claims. It accepted that, as a matter of domestic law, section 4(2)(a) of the State Immunity Act 1978 applied because the claimant was a Spanish national when proceedings were brought. It also held that section 16(1) SIA prevented reliance on section 4 in relation to employment of mission staff, so those claims were dismissed.

The tribunal rejected the respondent’s argument that diplomatic immunity belonging to embassy officials could be relied on by the Kingdom of Spain to defeat the Equality Act claims. Applying Benkharbouche and article 47 of the Charter, it held that the claimant’s work was not of an inherently sovereign or governmental character and was more akin to locally recruited administrative staff. The tribunal therefore disapplied sections 4(2)(a) and 16(1) of the State Immunity Act for the Equality Act 2010 claims.

The result was that only the Equality Act claims, namely direct race discrimination and harassment related to race, were allowed to proceed against The Kingdom of Spain. No remedy was determined in this judgment and no award was made at this stage.