A recent EAT judgment on the issue of diplomatic immunity has thrown many questions at the Supreme Court which has now been seized of the issue through a leap frog for the first time from EAT directly to the Supreme Court. 

Issues

The judgment by the Employment Appeal Tribunal (EAT) focused on two issues: that of precedent, and whether Ms Wong's employment by Mr Basfar can be categorised as 'commercial activity' under Article 31(1) of the Vienna Convention on Diplomatic Relations 1961 (1961 Convention) as enacted under s.2(1) Diplomatic Privileges Act 1964. For the benefit of the readership, this article focuses on the second issue.

1961 Convention 

Article 31(1) states:

 '1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction except in the case of … 

(c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.' 

Background 

Ms Wong (Claimant), of Philippine nationality, was employed by Mr Basfar (Respondent) who was a diplomat serving in Saudi Arabia who subsequently moved to the UK. The case proceeded on the basis that Claimant was a victim of international trafficking, exploited by the Respondent and his family, and her working conditions in the UK amounted to modern slavery.  

Claimant brought various claims in the employment tribunal including wrongful dismissal, failure to pay the National Minimum Wage, unlawful deduction of wages, claims under the Working Time Regulations 1998 and others. The Respondent contended that the tribunal had no jurisdiction to hear the claims as he was protected by diplomatic immunity as Claimant's employment was not a 'commercial activity outside his official functions'. Employment Tribunal refused to strike out the claims, rejecting the defence of diplomatic immunity. 

EAT decision 

It held as a preliminary that the law of diplomatic immunity should resist "the natural impulse to provide legal redress for victims of this abhorrent trade" as the "countervailing issues of high international policy" should hold sway over such concerns. 

In Reyes v Al-Malki, the facts of which were very similar to this case, the Court of Appeal (CA) found that the employment of a domestic servant was not a commercial activity nor was it exercised outside of a diplomat's official functions therefore the diplomat was immune from suit. On appeal to the Supreme Court (SC), however, it was overturned but on a different ground. EAT held that in such instances the judgment of CA on the issue of commercial activity was not binding.  

Having so held EAT then went on to observe that the CA judgment in Reyes on commercial activity nevertheless represented the current law on the issue. Therefore it held that employment and trafficking of the Claimant was not a commercial activity and the diplomat was immune from suit. 

Comment

Somewhat puzzling judgment but the significance of the case meant that it has been leapfrogged to the Supreme Court for consideration, the first time this has ever happened. We will finally get an authoritative judgment by the highest court on the issue of whether the employment and trafficking of a domestic servant is a commercial activity under the 1961 Convention. We will keep you up to date with its development in the coming months.

Basfar v Wong UKEAT/0223/19/BA