John Platts-Mills represented the successful respondent in persuading the EAT to dismiss an appeal against a tribunal’s finding that Kuwait was not immune in respect of a claim that discrimination caused serious psychiatric injury to an employee of the Kuwait Health Office in London. Permission to appeal to the Court of Appeal has been granted.

EAT dismisses Kuwait’s appeal against Tribunal’s decision that the state was not immune in respect of discrimination causing psychiatric injury.

Mr Mohamed is a medical doctor and British citizen. He was employed by the Kuwait Health Office (“KHO”), which is part of Kuwait’s diplomatic mission. During his time at the KHO, Mr Mohamed worked, successively, as an in-house doctor and as a medical auditor.

By the time that the COVID lockdown started, in March 2020, Mr Mohamed was 75 years old, and was suffering from prostate cancer, along with diabetes and hypertension. He remained at home, in order to shield himself. On 20 May 2020 he was sent a letter of dismissal. He fell into a clinical depression.

Mr Mohamed issued proceedings in the ET on 28 September 2020. Whilst the cause of action arose after 18 October 2017 (the date from which the State Immunity Act 1978 (Remedial) Order 2023 applies per para 1) the PH to consider state immunity occurred prior to the Remedial Order being made.

The EJ applied Benkharbouche and held that Mr Mohamed’s functions, as a member of the KHO’s administrative staff, were sufficiently close to the governmental functions of the diplomatic mission to attract state immunity. However, section 5 SIA applied, Kuwait was not immune as respects proceedings in respect of— personal injury caused by an act or omission in the United Kingdom.

The ET subsequently partly upheld Mr Mohamed’s claims for direct and indirect discrimination on grounds of disability and age, and for harassment related to disability and age. Mr Mohamed was awarded £332,590.

An interesting feature of the case is that Kuwait appealed against the decision made at the PH 370 days out of time. An extension of time was sought and refused by the Registrar. An appeal was allowed, John Bowers KC holding that “The doctrine of state immunity as interpreted in Costantine by the Supreme Court required the Registrar to permit extension of time in this case” (per para 46 J’ment).

Kuwait reserved its positions as regards the possibility of Shehabi (CA) being overturned and “personal injury” not encompassing psychiatric injury. Shehabi is not an employment case. Kuwait focused its submissions on the impact of ss.4 and 16. Kuwait contended that the obiter dicta of Bean LJ in Alhayali are correct and s.5 does not apply to the statutory tort of discrimination.

Mr Mohamed successfully resisted Kuwait’s appeal:

First, Cavanagh J rejected Kuwait’s argument that the Lock test was to be disapplied or that the case should fall within the “exceptional circumstances” limb of Lock because it concerned state immunity.

Cavanagh J held that the circumstances in which a court or tribunal should follow the ruling on the same point of law if it has already been determined by a court or tribunal of co-ordinate jurisdiction is not a rule of procedure but rather “a principle which governs the substantive outcome of the case” (para 139). Accordingly, stare decisis is not disapplied in cases concerning state immunity (para 139).

Nevertheless, there remains considerable scope for gaining a strategic advantage by reference to the disapplication of normal rules of procedure in proceedings in which state immunity has been asserted.

Second, applying Lock, Cavanagh J was not persuaded that the previous decisions of the EAT in Caramba-Coker, Ogbonna and Alhayali were “manifestly wrong”. As Singh J said in Lock, if there has to be extensive or complicated argument about the point, that is a clear sign that the previous ruling was not manifestly wrong.

Whilst that disposed of the appeal Cavanagh J proceeded to identify 8 arguments in favour of Kuwait’s position (para 152 J’ment) and 16 arguments in favour of Mr Mohamed. Having noted that the arguments were “very finely balanced”, Cavanagh J expressed cautious preference for Kuwait’s position whilst recognising that it is an “important point of law that will need to be determined by the Court of Appeal”. Kuwait has applied for permission to appeal to the Court of Appeal, which has been granted.