The Kingdom of Spain v Miss Lydia Lorenzo
| Jurisdiction | UK Non-devolved |
| Judge | Mrs Justice Ellenbogen |
| Subject Matter | Not landmark |
| Court | Employment Appeal Tribunal |
| Published date | 13 December 2023 |
Judgment approved by the court for hand down The Kingdom of Spain v Lorenzo
© EAT 2023 Page 1 [2023] EAT 153
Neutral Citation Number: [2023] EAT 153 Case No: EA-2021-000659-NLD
EMPLOYMENT APPEAL TRIBUNAL
Rolls Building
Fetter Lane, London, EC4A 1NL
Date: 12 December 2023
Before :
THE HONOURABLE MRS JUSTICE ELLENBOGEN DBE
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Between :
THE KINGDOM OF SPAIN Appellant
- and –
MS L LORENZO Respondent
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Mr J Davies (instructed by Gunnercooke LLP) for the Appellant
Mr M Jackson (instructed by The Free Representation Unit) for the Respondent
Hearing dates: 07 and 08 February 2023
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JUDGMENT
Judgment approved by the court for hand down The Kingdom of Spain v Lorenzo
© EAT 2023 Page 2 [2023] EAT 153
SUMMARY
JURISDICTION, RACE DISCRIMINATION
Only grounds two to six of the appeal had been pursued. As a matter of principle, ground four would
be allowed, though, in the event, would have made no difference to the Tribunal’s decision, which
would stand. The remaining grounds of appeal would be dismissed.
The Tribunal had correctly held that, as a matter of law, the diplomatic immunity conferred upon a
diplomatic agent by Article 31 of the Vienna Convention was not conferred upon the State, as
respondent to claims brought under the Equality Act 2010. When considering State immunity, in this
case, it ought to have considered the pleaded acts of discrimination, though its decision as to whether
the acts of the appellant had been sovereign acts of the sending State had not been perverse. Consistent
with the decision in Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs
[2017] UKSC 62, the Tribunal had been correct to disapply section 4(2)(a) of the State Immunity Act
1978, as being contrary to EU Law.
Judgment approved by the court for hand down The Kingdom of Spain v Lorenzo
© EAT 2023 Page 3 [2023] EAT 153
THE HONOURABLE MRS JUSTICE ELLENBOGEN DBE:
Judgment
1. In this judgment I refer to the parties by their respective statuses below.
2. This is the respondent’s appeal from the judgment of the London Central Employment
Tribunal, (Employment Judge Segal KC, sitting alone — ‘the Tribunal’), sent to the parties
on 16 June 2021. That judgment followed an open preliminary hearing at which the claimant
represented herself and the respondent was represented, as it was before me, by Mr Jonathan
Davies. On appeal, the claimant was represented by Mr Matthew Jackson.
3. The issues for determination by the Tribunal had been identified in an earlier case
management summary as being whether the claims should be struck out because they were
barred by diplomatic immunity, pursuant to Article 31 of the Vienna Convention on
Diplomatic Relations 1961 (‘the Vienna Convention’); alternatively, State immunity,
pursuant to section 1 of the State Immunity Act 1978 (‘the SIA’), on the basis that the claims
and/or the acts of which the claimant complained arose out of an inherently sovereign or
governmental act of the Kingdom of Spain. Each issue was sub-divided into a number of
elements. The Tribunal held that: (1) the claimant’s claims deriving from the Employment
Rights Act 1996 and the Employment Act 2002 would be dismissed; (2) her claims of direct
race discrimination, contrary to sections 13 and 39 of the Equality Act 2010 (‘the EqA’), and
harassment related to race, contrary to sections 26 and 39 of the EqA (in each case reliant
upon her British nationality) would proceed to a substantive hearing; and (3) the correct
respondent to those claims was ‘The Kingdom of Spain’, rather than, as had been pleaded by
the claimant, the ‘Embassy of Spain’.
4. The Tribunal received written and oral evidence from the claimant and from the then current
Canciller (Ambassador) at the Spanish Embassy, in London. It observed that the facts had
been largely agreed and/or matters of documentary record. It noted ([15] and [16]) that the
claimant had been recruited to work in the Spanish Embassy in about January 2008, whilst
she had been living in London. She had had dual nationality (British and Spanish) and a
Spanish passport. Initially, she had worked as the Ambassador’s social secretary, in which
capacity she had worked, mainly from his official residence, next door to the embassy. She
had sometimes seen confidential documents, for the purposes of copying them et cetera. After
what had been described to the Tribunal as a career break, she had returned to work in 2013,
in a more junior capacity, as Administrative Assistant, being one of approximately 42 staff
then working at the embassy. In that capacity, she had had sight of confidential documents
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