Employment lawyers are used to arguments about jurisdiction. Arguments about time limits and excluded causes of action are part of the bread and butter of Employment Tribunal claims. Sometimes, though, more unusual issues arise. In Kuwait v S Mohamed [2026] EAT 20 (Cavanagh J), the Employment Appeal Tribunal recently considered state immunity, asserted by Kuwait in an Employment Tribunal claim brought by a doctor who had worked at its embassy in London. Permission to appeal to the Court of Appeal on three grounds has now been granted, setting the stage for a further round of argument on state immunity in employment cases at Court of Appeal level. Meanwhile, judgment is awaited from the Supreme Court in Shehabi v Bahrain (alleged psychiatric injury caused by computer hacking against Bahraini dissidents in London, with Bahrain asserting state immunity).
Mr Mohamed is a British citizen who worked in London for the Kuwaiti Health Office, an organ of the Kuwaiti state which arranges health treatment for Kuwaiti citizens in certain circumstances. Mr Mohamed’s job involved dealing with private hospitals in the UK which were treating Kuwaiti citizens. At the start of the coronavirus lockdown in March 2020, he was 75 years old and suffered from various health conditions, including cancer. He wanted to shield at home. The Kuwaiti government ordered him to return to the office and, when he did not, dismissed him on 20 May 2020. He brought a claim in the Employment Tribunal on various bases. Importantly for this appeal, this included a claim for personal injury, based on depression caused by his dismissal.
At a Preliminary Hearing in January 2023, the ET considered Kuwait’s assertion of state immunity. Neither party contended that Mr Mohamed was a diplomat or consular officer. However, in a judgment apparently not delivered until January 2024, the ET held that his functions were sufficiently close to the governmental functions of the diplomatic mission to attract state immunity. That finding was not challenged on appeal. However, applying s5 of the State Immunity Act 1978, interpreted by the EAT in Nigeria v Ogbonna [2012] ICR 132 (judgment by Lord Justice Underhill, as he most recently was, then as President of the EAT), the ET held that Mr Mohamed’s personal injury claim i.e. depression arising from discrimination and harassment could continue, as it fell within the personal injury exception to state immunity. The judgment on state immunity as a preliminary issue was not appealed at the time, the matter went to trial and, in April 2024, Kuwait was ordered to pay Mr Mohamed over £300,000.
Kuwait then appealed the state immunity issue, despite being over a year out of time with respect to the relevant Preliminary Hearing judgment. After an initial refusal by the Registrar, the EAT gave permission for this appeal, following the Supreme Court’s judgment in Saudi Arabia v Costantine [2025] UKSC 9.
Essentially, Kuwait argued that Ogbonna was wrong, and should not be followed by the EAT. It said the obiter view recently expressed by Bean LJ in Saudi Arabia v Alhayali [2025] EWCA Civ 1162, namely that where state immunity would otherwise apply to bar an employment claim (as it was accepted it would in Mr Mohamed’s case, and had barred all his claims not relating to personal injury), the fact that personal injury was said to have resulted from the employment claim would not remove that bar. Mr Mohamed argued that the EAT was bound by Ogbonna and should not depart from it based on an obiter comment, albeit from a very senior judge with a strong background in employment law.
The EAT judgment analysed the principles in British Gas v Lock [2016] ICR 502, whereby the EAT will normally follow its own previous decisions on a point of law. Based on the Lock principles, it held that it should follow Ogbonna in this case and the ET’s finding that psychiatric injury arising from an employment related claim is a recognised exception to state immunity. However, it did so while simultaneously expressing the view that this is actually the wrong conclusion and that Bean LJ’s view in Alhayali should be preferred.
The stage is now set for the Court of Appeal to consider the state immunity issue, with permission having been granted on three grounds:
- That personal injury claims arising out of employment in a diplomatic mission, where the exercise of sovereign authority is involved, are not an exception to state immunity
- That, even if there is a ‘personal injury exception’, this does not cover psychiatric injury (this is likely to turn on the Supreme Court’s decision in Shehabi)
- That Lock doesn’t apply to state immunity cases
As always, Claimants employed by foreign states may need careful advice when bringing claims arising from their employment. Depending on the outcome in Kuwait v Mohamed, States may be able to assert state immunity in certain cases retrospectively, even where judgments have already been given against them (and, arguably, even where they had previously not contested jurisdiction).
For more information, please contact someone in the Employment Department. Alternatively, call us on 020 7465 4300.
This article featured in our Spring edition of ‘IN CASE’, our Employment newsletter for HR Directors.
