The Employment Appeal Tribunal has recently handed down judgment in The Government of the State of Kuwait v Mohamed EA-2024-000300 and EA-2024-000302 (10 September 2025) per John Bowers KC sitting as a Deputy High Court Judge, in which Mohinderpal Sethi KC acted for the State of Kuwait.
This is the first time that the EAT has considered the UK Supreme Court’s recent judgment in The Royal Embassy of Saudi Arabia v Costantine [2025] UKSC 9, [2025] ICR 768, [2025] IRLR 636 (6 March 2025), in which Mohinderpal Sethi KC appeared for the Kingdom of Saudi Arabia. See here.
In March 2024 Kuwait appealed 370 days out of time against a judgment of the employment tribunal on state immunity delivered in January 2023 and appealed 67 days out of time against a judgment on liability delivered in November 2023. Kuwait also appealed against the ET’s remedies decision in which the claimant was awarded damages for personal injury caused by discrimination. The remedies appeal was in time and permitted to proceed to a full hearing.
Meanwhile, Kuwait applied for an extension of time in the immunity and liability appeals. The Registrar applied the normal rules on time limits and refused to extend time. Importantly, this was before the Supreme Court’s decision in Costantine.
Allowing Kuwait’s appeal against the Registrar’s order, the EAT applied Costantine holding that state immunity was an exceptional feature of the appeals which disapplied the normal test for extensions of time and to which different and special considerations applied.
The EAT emphasised the importance of compliance by the employment tribunals and appeal tribunal with international law rules on state immunity. If the ET exercises jurisdiction over a foreign state which is entitled to state immunity, there is a breach of international law.
The positive duty under section 1(2) State Immunity Act 1978 on all appellate courts and tribunals to inquire and determine whether state immunity applies of their own motion was comprehensively reviewed by Lord Lloyd Jones in Costantine. The EAT held that there is now consistent jurisprudence to the effect that state immunity is capable of overriding procedural rules.
Mohinderpal Sethi KC appeared on behalf of the State of Kuwait, instructed by Jawaid Rehman at Weightmans LLP.
Mohinderpal Sethi K.C. specialises in domestic, international and offshore business protection, employment, partnership and sport litigation and arbitration. He is a Top-Ranked Silk in Chambers (UK and Global) and Legal 500 (UK, EMEA and Caribbean). He has twice represented foreign states in the UK Supreme Court in groundbreaking employment claims under international law. For two years in a row, he was the Senior Counsel of the Year (International Employment Lawyer Awards 2023 and 2024). He is also the Employment Silk of the Year (Legal 500 Bar Awards 2023), Civil Lawyer of the Year (Asian Legal Awards 2022) and Barrister of the Year Finalist (The Lawyer Awards 2022). He is a former Chair of the UK’s Employment Law Bar Association and is currently Co-Head of the Middle East Group.
