Embassy discrimination ruling challenges immunity

A discrimination claim by a former UK Spanish Embassy employee has led to a ruling that the State Immunity Act is incompatible with the European Convention on Human Rights. Lawyers believe this is only the third declaration of incompatibility ruling to be made in connection with a dispute arising in the context of employment.

The ruling by a Court of Appeal judge means UK law may be changed. It was given after the Court of Appeal rejected a claim from the Kingdom of Spain that state immunity protected it from an employment-based discrimination claim by a former Spanish embassy employee.

The judgment confirms that section 4(2)(a) of the State Immunity Act, which asserts that immunity should apply between a state and nationals of that state in its embassies, is superseded by Vienna Convention legislation on international treaties. This rules that immunity should not apply in cases of locally recruited staff who are nationals and permanent residents of the country where the embassy is based and that granting immunity in such cases would be in breach of Article 6 European Convention on Human Rights.

In the original case, the claimant, who lived in London and holds dual UK and Spanish nationality, lodged a claim shortly after leaving her role at the embassy in 2015. She alleged constructive dismissal and race discrimination.

Her claim that disparaging remarks had been made about her and British people in general was previously given permission to proceed at the London Central Employment Tribunal and Employment Appeal Tribunal.

The Kingdom of Spain argued that it should have state immunity from the claim, but its argument failed in both Employment Tribunal and Employment Appeal Tribunal judgments, decisions which the Spanish Government challenged at the Court of Appeal in November 2024.

The challenge was dismissed by the Court of Appeal on 20 December 2024. They ruled the Kingdom of Spain should not be entitled to state immunity, and the claimant’s dual Spanish nationality did not change this.

They also ruled that the claimant’s work at the embassy, which involved carrying out administrative duties for diplomats, was domestic rather than diplomatic duties and did not fall under international law, meaning her claim should not be affected by state immunity legislation.

As well as rejecting the Kingdom of Spain’s appeal, the Court asked the Secretary of State to provide their views on whether making a declaration that section 4(2)(a) of the State Immunity Act is incompatible with the European Convention on Human Rights, specifically Article 6, would be lawful.

The declaration does not change the law, but it ought to lead to a change in the future. It is up to Parliament to decide whether to change the law.

The judge has since confirmed making a declaration and ordered the Kingdom of Spain to pay pro bono costs of £27,500 to the Access to Justice Foundation.

The claimant is represented by human rights partner Ryan Bradshaw at Leigh Day.

Ryan Bradshaw said “This decision is a positive moment for individuals working in embassies and on missions in the UK. It affirms that fundamental rights, including protection against discrimination, cannot be overridden by state immunity. It underscores the importance of ensuring that domestic legislation is in line with international human rights standards. It provides a pathway for justice in cases where previously, individuals may have been denied their day in court.”