No diplomatic immunity for actions grounded in modern slavery allegations

18 July 2022 by Lucy McCann

Basfar v Wong [2022] UKSC 20

Judgment here, links to hearings here.

The landmark decision handed down on 6 July 2022 by a majority of 3 to 2 in the Supreme Court held that a serving diplomat does not enjoy immunity in an employment tribunal claim grounded in allegations of modern slavery.

Lord Briggs and Lord Leggatt (Lord Stephens agreeing) gave the joint majority decision. Lord Hamblen and Lady Rose gave the dissenting judgment.

Background

Ms Wong, a national of the Philippines, worked in the household of Mr Basfar, a Saudi Arabian diplomat in the UK.

In summary, Ms Wong’s allegations at [6-10] (which were assumed to be true for the purposes of the appeal) were that she:

• Was confined to Mr Basfar’s house except to take out the rubbish.
• Could only communicate with her family twice a year on Mr Basfar’s mobile.
• Worked from around 7am to 11:30pm everyday with no rests or days off.
• Was required to wear a buzzer so that she could be called by the family 24 hours a day.
• Was shouted at and called offensive names.
• Could only cook for herself when the family were out, otherwise she ate their leftovers.

Ms Wong was paid nothing for 7 months, she was then paid approximately £1,800 for six months in a lump sum, a fraction of her contractual entitlement. After that she was not paid again. She eventually managed to escape these abusive conditions. 

The majority commented that the question raised on appeal was of general importance [5]. The same issue was considered in the case of Al-Malki v Reyes [2017] UKSC 61 (‘Reyes’), but where the diplomat’s posting had ended during the litigation. The Supreme Court heard evidence from Kalayaan, a charity that supports migrant domestic workers and the UN Special Rapporteur on Trafficking in Persons especially Women and Children, to gain a wider perspective.

In 2018 Ms Wong successfully brought a claim in the Employment Tribunal (‘ET’) for wages and breaches of her employment rights. Mr Basfar applied to have her claim against him struck out arguing that he had diplomatic immunity conferred by the Vienna Convention on Diplomatic Relations 1961 (‘the Convention’). Mr Basfar succeeded on appeal to the Employment Appeal Tribunal (‘EAT’) (decision here) and the case was further appealed to the Supreme Court, leapfrogging the Court of Appeal.

The ‘commercial activity’ exception to diplomatic immunity

Under the Convention, diplomatic agents enjoy general immunity from civil claims, with an exception in article 31(1)(c) for actions relating to:

 “any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions”. 

The question for the Supreme Court was whether the alleged acts were a ‘commercial activity exercised’ by Mr Basfar within the meaning of article 31(1)(c), to be interpreted in accordance with accepted principles of interpretation in international law.

Also relevant is article 42 of the Convention, which states that a diplomatic agent:

“shall not in the receiving State practise for personal profit any professional or commercial activity.”

The majority decision

All members of the Supreme Court agreed that the ordinary employment of a domestic worker by a diplomat does not constitute the exercise of a commercial activity within the meaning of the article 31(1)(c) exception, albeit for different reasons [42] [111].

The majority held that as a matter of ordinary language entering a contract of employment for domestic help could come within the meaning of a ‘commercial activity’ [28-29]. However, on a broader consideration of the purpose of conferring diplomatic immunity, the majority concluded that hiring domestic help is incidental to the daily life of a diplomat, and is therefore not a commercial activity for the purpose of article 31(1)(c) [37].

Importantly, however, in the view of the majority there is a ‘material and qualitative difference’ between exploiting a domestic worker and compelling her to work in circumstances of modern slavery and an ordinary employment relationship of a kind that is incidental to the daily life of a diplomat (and his family) [43]. Two reasons were given.

Firstly, Mr Basfar had a high degree or control over Ms Wong and her labour, for the reasons outlined at [45-49]. Taken together, the majority concluded that the extent of the control over Ms Wong’s person and dominion over her labour ‘was so extensive and despotic’ as to place her in a position of domestic servitude.

Secondly, Mr Basfar exploited this control for personal profit. The family enjoyed the benefit of Ms Wong’s service for close to two years, initially for a fraction of her contractual entitlement and latterly for no pay at all. The majority observed that this was a ‘deliberate and continuing course of conduct by which that benefit was gained is in our view properly characterised as the exercise of a commercial activity’ [52], practised for personal profit [56].

On this basis, the majority concluded that it would not merely be wrong but offensive to suggest that Ms Wong’s treatment was the ordinary conduct of domestic life, and indeed such exploitation was an abuse of Mr Basfar’s presence in the UK and fell far outside the sphere of ordinary contracts incidental to the daily life of the diplomat and family members which the immunity serves to protect [57].  

The majority observed that their conclusion on the nature of Mr Basfar’s treatment of Ms Wong did not depend upon which manifestation of modern slavery (slavery, forced labour, servitude) may best describe his conduct [96-97]. However, their Lordships observed that the assumed facts of the present case were a ‘paradigm example of domestic servitude’ [100]. 

However, after an extensive discussion the majority did not resolve whether Ms Wong’s treatment amounted to human trafficking as defined in international law, and observed (at [99]) that:

“The gravamen of Ms Wong’s claim is that she was exploited by being forced to work for Mr Basfar in the UK in circumstances of modern slavery. The case that the exploitation of her labour amounted to a commercial activity would be just as cogent if Ms Wong had already been resident in the UK before working for Mr Basfar and had become an employee of Mr Basfar in the UK freely but he had then treated her in the manner alleged after she entered his service. Conversely, if Mr Basfar had engaged in trafficking by transporting Ms Wong to the UK using deception or coercion for the purpose of exploitation but had then changed his mind and employed her on a regular and voluntary basis, a claim for breach of her contract of employment would not, as it seems to us, fall within the article 31(1)(c)“.

The majority allowed the appeal and reinstated the judgment of the ET refusing to strike out the claim. Ms Wong’s case will now return to the ET to determine the truth of the allegations made.

The dissenting judgment

In the view of the minority (at [113]):

“Where we disagree with the majority is in their conclusion that the conditions under which a person is employed or how they came to be employed can convert employment which is not of itself a ‘commercial activity’ exercised by her employer into such an activity falling within the exception“.

The minority contended that international instruments on human trafficking and modern slavery did not expand the meaning of commercial activity and therefore the scope of the article 31(1)(c) exception [134]. Even if Mr Basfar’s treatment of Ms Wong was of an ‘appalling nature’, it did not amount to commercial activity [153].

Further, the minority observed that such an expansion ‘risks seriously undermining the scope of diplomatic immunity’ and risks exposing UK diplomats overseas to formal or informal retaliatory measures [113].

Comment

The majority decision deliberately fell short of resolving whether Ms Wong’s treatment amounted to human trafficking, which leaves open the question of whether an action grounded in human trafficking alone falls within the s.31(1)(c) exception. It is likely that the parameters of this decision will be tested on this issue in similar cases both in the UK and in other jurisdictions.

Lucy McCann is a pupil barrister at 1 Crown Office Row.