This appeal raises important points of international employment law and procedure, including whether state immunity applies to personal injury claims brought by someone employed in the exercise of sovereign authority, and the circumstances in which the EAT should follow the decision of previous EATs on the same point of law.
EAT grapples with whether state immunity applies to personal injury claims brought by persons employed in the exercise of sovereign authority
In Government of the State of Kuwait v Mohamed [2026] EAT 20 (28 January 2026), the Employment Appeal Tribunal (Mr Justice Cavanagh) considered an appeal by Kuwait against an employment tribunal decision that the claimant, a doctor employed by Kuwait’s diplomatic mission in London, was entitled to claim compensation for psychiatric injury arising from discrimination and harassment relating to his dismissal and the events leading up to it.
At a Preliminary Hearing, the ET held that Kuwait employed the claimant in the exercise of state authority pursuant to s16(1) of the State Immunity Act 1978 (“SIA”), which provides for state immunity in respect of statutory employment claims relating to a person’s contract of employment (s17(4A) SIA). However, by virtue of s5 SIA, state immunity does not apply to proceedings in respect of death or personal injury caused by an act or omission in the United Kingdom. The ET held that s5 SIA applied because the claimant’s employment claim was for compensation for personal injury, and therefore there was no state immunity. The ET upheld the claimant’s claims in part and awarded him over £300,000 in compensation.
Kuwait appealed to the EAT on two grounds.
Ground 1: The ET erred in law because the personal injury exception to state immunity contained in the s5 SIA has no application to personal injury claims arising out of the employment by a State of an employee in a diplomatic mission, where the exercise of sovereign authority is involved.
Three previous EAT decisions had considered this point finding, each time, that s5 SIA applies, so that there is no state immunity for personal injury claims arising out of the employment by a state. However, in Royal Embassy of Saudi Arabia v Alhayali [2025] IRLR 918 Bean LJ stated, obiter, that these decisions were wrong. In seeking to apply British Gas Trading v Lock [2016] ICR 502, the EAT held that the normal convention that the EAT should follow its own previous decisions applies to state immunity cases as long as (i) the previous decisions were not per incuriam; (ii) they were not manifestly wrong; or (iii) there were no exceptional reasons why the EAT should not follow the previous decisions. The fact that a Court of Appeal judge had stated, obiter, that the decisions were wrongly decided did not mean, automatically, that they were manifestly wrong.
The EAT considered that as a consequence of Bean LJ’s recent obiter observation in Alhayali, the EAT authorities it was compelled to follow were wrongly decided, and that the issue “cries out for determination by the Court of Appeal”. Cavanagh J found himself in the “somewhat uncomfortable position” of rejecting Kuwait’s appeal even though he agreed with it.
Ground 2: The ET erred in law because even if the s5 SIA exception to state immunity applies to such employment-related personal injury claims, s5 SIA does not cover psychiatric injury and so does not apply to the claimant’s claims.
The EAT dismissed the appeal on this ground following the ruling of the Court of Appeal on the same point in Shehabi v Bahrain [2025] 2 WLR 467. This case is currently before the Supreme Court, in which judgment is pending. Kuwait accepted that unless and until the ruling of the Court of Appeal in Shehabi is overturned by the Supreme Court, the ruling is binding on the EAT.
The EAT granted permission to Kuwait to appeal to the Court of Appeal on both grounds.
Additional Ground 3: The EAT misapplied Lock
The EAT also permitted Kuwait to appeal on the further ground that the EAT has arguably misapplied Lock in the context of its positive statutory duty to resolve state immunity issues of its own motion, as explained in the recent Supreme Court authority of Royal Embassy of Saudi Arabia v Costantine [2025] ICR 768 (SC) – in which Mohinderpal Sethi K.C also appeared for Saudi Arabia.
The stage is now set for the Court of Appeal to provide authoritative guidance on the boundaries of state immunity for employment claims seeking compensation for personal injury.
The full judgment can be found here.
Mohinderpal Sethi K.C. appeared on behalf of the Government of the State of Kuwait, instructed by 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. He is shortlisted for Commercial Silk of the Year (Legal 500 MENA Awards 2026). 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.
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