DIPLOMATIC IMMUNITY
The Claimant was employed by the Respondent diplomat to work as a domestic servant at his diplomatic residence in the UK, having previously been employed by him in his diplomatic household in Saudi Arabia. By her ET1 form she contended that she was a victim of international trafficking by the Respondent and had been employed in conditions amounting to modern slavery. She made complaints including wrongful (constructive) dismissal, failure to pay the National Minimum Wage, unlawful deductions from wages and breach of the Working Time Regulations 1998. The Respondent applied to strike out all the claims (which were denied) on the basis of diplomatic immunity, contending that his employment of the Claimant did not constitute a ‘commercial activity exercised . . outside his official functions’ within the meaning of Article 31(1)(c) of the Vienna Convention on Diplomatic Relations 1961 as enacted into domestic law by s.2(1) Diplomatic Privileges Act 1964. The application proceeded on the basis of assumed facts as pleaded in the ET1.
The Employment Tribunal dismissed the application and the defence of diplomatic immunity. In doing so, it held that (i) the decision of the Court of Appeal in Reyes v Al-Malki [2015] ICR 289 on the meaning of ‘commercial activity’ in a case involving similar assumed facts was not binding in circumstances where the Supreme Court had allowed the appeal on another ground (R v Secretary of State for the Home Department, ex parte Al-Mehdawi [1990] 1 AC 876 followed); and (ii) the non-binding observations of three Justices of the Supreme Court in Reyes (Lord Wilson, Baroness Hale and Lord Clarke) on the meaning of ‘commercial activity’ were to be preferred to those of the Court of Appeal and two Justices of the Supreme Court (Lord Sumption and Lord Neuberger).
The EAT allowed the Respondent’s appeal. It rejected his argument that the decision of the Court of Appeal on ‘commercial activity’ was binding (Al-Mehdawi considered); but held that the current state of the law on that issue was represented by the conclusion in Reyes of Lords Sumption and Neuberger and the Court of Appeal. Accordingly, it held that the defence of diplomatic immunity succeeded.
Judges:
The Honourable Mr Justice Soole
Citations:
[2020] UKEAT 0223 – 19 – 3101, [2020] WLR(D) 240, [2020] ICR 1185
Links:
Jurisdiction:
England and Wales
Cited by:
Appeal from – Basfar v Wong SC 6-Jul-2022
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Lists of cited by and citing cases may be incomplete.
Employment
Updated: 10 July 2022; Ref: scu.646836
