On appeal from: UKEAT/223/19/BA
Ms Josephine Wong (a national of the Philippines) is a migrant domestic worker who worked in the household of Mr Khalid Basfar, a diplomat representing the Kingdom of Saudi Arabia in the United Kingdom. Ms Wong claims to be a victim of human trafficking who was forced to work for Mr Basfar and his family in circumstances of modern slavery after they brought her with them to the UK in August 2016. Ms Wong alleges that she was confined, at all times, to Mr Basfar’s house except to take out the rubbish; that she was held virtually incommunicado; that she was made to work from 7am to around 11.30pm each day, with no days off or rest breaks; and that she was subjected to other degrading and offensive treatment. After arriving in the UK, she was allegedly paid nothing for seven months, then paid a fraction of her contractual entitlement in July 2017, and not paid again until she escaped in May 2018.
Ms Wong has brought a claim against Mr Basfar in an employment tribunal for wages and breaches of employment rights. Mr Basfar applied to have her claim struck out on the ground that he has diplomatic immunity from suit. Under article 31 of the Vienna Convention on Diplomatic Relations 1961 (the “Diplomatic Convention”), incorporated into UK domestic law by the Diplomatic Privileges Act 1964, diplomatic agents enjoy complete immunity from the criminal jurisdiction of the receiving state and are also generally immune from its civil jurisdiction. There is, however, an exception for civil claims relating to “any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.” None of the facts alleged by Ms Wong have been admitted by Mr Basfar, but for the purpose of deciding whether the claim should be struck out her allegations are assumed to be true. The issue is whether the conduct alleged constitutes a “commercial activity exercised” by Mr Basfar within the exception from immunity. (The conduct alleged is agreed to be “outside his official functions.”)
The employment tribunal declined to strike out Ms Wong’s claim. The Employment Appeal Tribunal allowed Mr Basfar’s appeal but issued a certificate that the case was suitable for an appeal directly to the Supreme Court, “leapfrogging” the Court of Appeal. The Supreme Court then granted permission for this appeal.
By a majority of three to two, the Supreme Court allows the appeal and decides that, if the facts alleged are proved, Mr Basfar does not have diplomatic immunity in relation to the claim. Lord Briggs and Lord Leggatt (with whom Lord Stephens agrees) give the joint majority judgment. Lord Hamblen and Lady Rose give a dissenting judgment.
More information is available on our website: UKSC 2020/0155
