Al-Malki v Reyes (Secretary of State for Foreign and Commonwealth Affairs intervening)

Diplomatic immunity is distinct from State immunity and generally has the wider scope. Its purpose is to ensure that a serving diplomat is not hindered in performing official functions. A restriction on access to an employment tribunal therefore remains proportionate under Article 6 ECHR where it reflects the limits agreed in the Vienna Convention and no subsequent international development has modified them.

The seriousness of employment allegations does not determine whether claims fall within an exception to immunity. Domestic employment in a diplomat’s private residence is outside the diplomat’s official functions, but that does not itself bring the employment within the commercial-activity exception. Service by post on solicitors already acting for diplomats is permissible. Employment tribunals have jurisdiction over employment claims, but not free-standing trafficking allegations.

Two domestic workers brought employment claims against a Saudi diplomat and his wife, alleging discrimination, harassment, unlawful deductions from wages, holiday pay and related statutory breaches. The respondents relied on diplomatic immunity under the Diplomatic Privileges Act 1964 and the Vienna Convention on Diplomatic Relations.

The Employment Tribunal held that the claims could proceed. It treated the employment of domestic staff as commercial activity under section 3 of the Human Rights Act 1998, because immunity would otherwise disproportionally interfere with access to a court under Article 6 ECHR. It also held that service had been validly effected and rejected an Article 4 ECHR objection. The appeal concerned diplomatic immunity, service and the alleged trafficking implications.

1. Diplomatic immunity. The appeal was allowed on the principal issue. Article 31(1) of the Vienna Convention, incorporated by section 2(1) of the Diplomatic Privileges Act 1964, gave the first respondent immunity unless an exception applied.
2. Official functions. The employment of a domestic worker confined to the diplomat’s private home was at the end of the spectrum of activities connected with diplomatic functions and was outside the scope of official functions. Employment more closely ancillary to mission work, such as a personal assistant handling official correspondence and arrangements, might fall differently. The reasoning in Wokuri v Kassam and Abusabib v Taddese was applicable and had not been shown to be wrong.
3. Commercial activity and proportionality. The issue did not require deciding whether domestic employment was commercial activity. The legitimate aim of diplomatic immunity was protection of the diplomat’s personal inviolability and freedom from hindrance in performing official tasks. Diplomatic immunity was wider than State immunity. The reasoning in Fogarty, together with the international development reflected in the 2004 Convention and applied in Cudak and Sabeh El Leil, did not justify modifying diplomatic immunity. The seriousness of the allegations was irrelevant to whether a class of claims fell within an exception. The immunity was therefore a proportionate interference with Article 6.
4. Service. The appeal against the finding that service was valid failed. The prohibition on personal service and interference with diplomatic inviolability did not prevent service by post on solicitors already acting for the respondents.
5. Article 4. The cross-appeal failed. The employment tribunal could determine contractual, minimum-wage and discrimination claims, but had no jurisdiction to determine free-standing trafficking allegations. Factual overlap did not make the claims co-terminous, and the Article 4 argument did not alter the Article 6 conclusion.

Permission to appeal was granted because the issue was important and apparently undecided.

• Employment Appeal Tribunal: Allowed the appeal on diplomatic immunity. Dismissed the appeal concerning service and the cross-appeal concerning Article 4 ECHR.
• Employment Tribunal: Held that the respondents had been validly served and that diplomatic immunity did not bar the claims.