Modern Slavery - Claims Will Not Be Struck Out Because of Diplomatic Immunity
In the case of Basfar v Wong, the Supreme Court has held that Tribunal claims brought by a domestic worker based in the UK household of a Saudi Arabian diplomat can proceed to a hearing.
Claims of Modern Slavery
Ms Wong is a Philippine national who says she was trafficked to the UK to work in the household of a Saudi Arabian diplomat, working in circumstances amounting to modern slavery. Ms Wong says she was entirely confined to the house save to take out the rubbish, not allowed to communicate with her family or friends, and made to work from 7am to 11.30pm each day with no days off or rest breaks. Ms Wong says she went long periods of time without being paid at all, and when she was paid it was at a fraction of her contractual rate.
Ms Wong escaped from the household in May 2018 and brought claims for National Minimum Wage, unauthorised deductions from wages and breach of the Working Time Regulations 1998. Mr Basfar asked for the claims to be struck out, on the basis he has diplomatic immunity under the Vienna Convention.
What Is Diplomatic Immunity?
Diplomatic immunity is a form of legal protection given to diplomats and their families under international and UK law. Diplomats are completely immune from the criminal jurisdiction of the diplomat's receiving state, and are also generally immune from its civil jurisdiction. There are limited exceptions to diplomatic immunity, including 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".
What Did the Tribunal and Employment Appeal Tribunal Decide?
The Tribunal declined to strike out Ms Wong's claims. Mr Basfar appealed successfully to the EAT, which issued a certificate allowing the issue to progress directly to the Supreme Court, skipping the Court of Appeal.
The question for the Supreme Court was whether exploiting a domestic worker in the way Ms Wong alleged she had been treated constituted the exercise of a commercial activity within the exception outlined above. If so, then Mr Basfar could not benefit from diplomatic immunity in relation to her claims.
What Was the Supreme Court's Decision?
The Supreme Court allowed the appeal by a majority of three to two. Under normal circumstances, employing a domestic worker would not constitute a 'commercial activity' for the purposes of the exception to diplomatic immunity. However, the exploitation of a domestic worker is not comparable to an ordinary employment relationship. On the assumed facts, Ms Wong was in a position of domestic servitude and Mr Basfar gained a substantial financial benefit by exploiting her. This conduct was described as a commercial activity practised for personal profit.
On the assumed facts alleged by Ms Wong, Mr Basfar will not therefore benefit from diplomatic immunity. An employment tribunal hearing will now be required in order to determine the truth of Ms Wong's allegations.
