The Employment Appeal Tribunal (EAT)has recently handed down judgement in the case of Government of the State of Kuwait v Mohamed [2026] EAT 20 and paved the way for the Court of Appeal to consider key issues in international employment law, specifically state immunity in employment related personal injury claims and when the EAT should depart from its previous decisions.
At the hearing the EAT (Mr Justice Cavanagh) heard Kuwait’s challenge to an earlier tribunal ruling. The claimant, a doctor working at Kuwait’s diplomatic mission in London, had successfully argued that he could bring a claim for psychiatric injury linked to discrimination and harassment before and during his dismissal.
Background
At a preliminary hearing, the Employment Tribunal accepted that the doctor was employed by Kuwait in the exercise of sovereign authority, meaning that state immunity would normally apply under sections 16 and 17 of the State Immunity Act 1978 (SIA). However, the tribunal held that section 5 SIA, which removes state immunity for cases involving personal injury caused in the UK applied to his claim.
Kuwait appealed to the EAT on two main grounds.
Ground 1: The personal injury exception should not apply to employees of a diplomatic mission carrying out sovereign functions
Kuwait argued that the Section 5 SIA exception does not apply to personal injury cases arising from employment at a diplomatic mission when the employee is exercising in sovereign duties.
The EAT noted that this issue had been considered on three previous occasions where it was held that section 5 SIA does apply to employment related personal injury claims, so that state immunity does not apply. However, in Royal Embassy of Saudi Arabia v Alhayali [2025] IRLR 918, Bean LJ commented (obiter) that those decisions may be wrong.
The EAT in this case confirmed that it is generally bound by its own previous decisions. The fact that a Court of Appeal judge had expressed doubts did not, by itself, justify departing from the earlier cases.
Nevertheless, the EAT acknowledged that Bean LJ’s observation meant the current case law may well be incorrect and that the issue “cries out for determination by the Court of Appeal”. Cavanagh J accepted that he was in the unusual position of dismissing Kuwait’s appeal whilst agreeing with their argument.
Ground 2: Section 5 SIA does not cover psychiatric injury
Kuwait also argued that even if section 5 SIA applies to employment claims, it should not extend to psychiatric injuries. The EAT rejected this argument, following the Court of Appeal’s decision in Shehabi v Bahrain [2025] 2 WLR 467, which confirmed that psychiatric injury is covered by section 5. Kuwait accepted that Shehabi is binding unless overturned by the Supreme Court (a judgment is still awaited).
Further Ground 3: Misapplication of the Lock decision
The EAT granted Kuwait permission to appeal on a further issue: whether the EAT has misunderstood British Gas Trading v Lock when dealing with its duty to consider state immunity of its own accord. This point arises in light of the Supreme Court’s ruling in Royal Embassy of Saudi Arabia v Costantine [2025] ICR 768.
What happens next?
The EAT has granted Kuwait permission to appeal on all grounds. The Court of Appeal will now be asked to give clear and authoritative guidance on the extent to which foreign states can claim immunity in employment cases involving personal injury, particularly where the employee works within a diplomatic mission.
The decision is likely to have significant implications for international employment disputes involving embassies and state employed staff working in the UK.
The Government of the State of Kuwait engaged Jawaid Rehman, Partner at Weightmans LLP, who is recognised for his expertise in advising foreign embassies on matters relating to state and diplomatic immunity. He worked alongside Mark Foster, Lasya Nair and Rupinderjit Sandhu from the Weightmans team. In addition, specialist counsel, Mohinderpal Sethi KC was instructed to represent Kuwait at the EAT hearing.
