Weightmans acts in ground-breaking post-Brexit Kuwait Embassy case

In Fenniche v Kuwait Health Office and the Government of the State of Kuwait, an employment tribunal has, for the first time, considered the application of the European Union (Withdrawal) Act 2018 to a claim relying on general principles of EU law and the EU Charter of Fundamental Rights. The tribunal found that a foreign national bringing claims of discrimination and harassment in relation to his employment in the Embassy of Kuwait could, in principle, rely on the Charter and general principles of EU law to disapply state immunity under the State Immunity Act 1978. Although the Withdrawal Act restricts reliance on the Charter and EU law principles after 31 December 2020, transitional provisions apply to preserve their effect in proceedings begun but not finally decided before that date.

What happened?

The Claimant was employed by the Government of the State of Kuwait as an in-house doctor in its Embassy in London. He was dismissed in July 2019 and brought a number of claims including unfair dismissal, harassment and race discrimination. Section 16 of the State Immunity Act 1978 provides that state immunity extends to claims brought by employees (such as the Claimant) of a diplomatic mission.

Under the State Immunity Act, the Government of Kuwait argued that it was immune from the jurisdiction of the courts and tribunals of the UK. In order for the Government to succeed, it had to show the Claimant’s job functions were exercises of Sovereign Authority and not private in nature. This depended on the nature of the relationship between the parties and the functions that the Claimant was employed to do. The Government argued that the Claimant had access to medical records of high ranking Kuwaiti officials and that this placed the Claimant in a very privileged position.

The Claimant argued that his job functions were of a private nature; therefore, he should be allowed to pursue his claim as the mere possibility that he had access to confidential documents was not sufficient for immunity to apply. He contended that his role was purely administrative, with no government functions attached to it, and neither did his role relate to any governmental function.

Judgment

The tribunal found that the Respondent Government did benefit from state immunity as the Claimant’s job functions were found to be sovereign in nature. The Claimant’s functions, when employed in the Embassy, were sufficiently close to the governmental functions, therefore they attracted state immunity. As an in-house doctor, he was responsible for protecting the interests of Kuwaiti nationals referred to the Embassy for medical treatment, including senior government officials. His employment was not, legally, purely private.

However, it should be noted that there is an exclusion that applies to the impact of the State Immunity Act in so far as Personal Injury is concerned. Therefore, in so far as the Claimant’s discrimination and harassment claims asserted that he had suffered injury to his health, the State Immunity Act 1978 did not bar that claim.

Jawaid Rehman acted for the Respondents in this matter, assisted by Aasha Jassi, Solicitor.