Reyes & Anor v Al-Malki & Anor

A diplomatic agent’s employment of a domestic worker at an official residence is ordinarily incidental to diplomatic life. It is not a professional or commercial activity exercised outside official functions within article 31(1)(c) of the Vienna Convention on Diplomatic Relations.

That characterisation does not change because the employment is alleged to involve trafficking. Neither article 4 nor article 6 of the European Convention on Human Rights creates an established rule of international law overriding diplomatic immunity in such civil claims.

Personal service on a diplomatic agent is prohibited by inviolability. Subject to the applicable procedural rules, however, proceedings within an exception to immunity may be served by post at the diplomatic mission or the agent’s private residence.

The appellants had been employed as domestic workers by a Saudi diplomatic agent and his wife at the agent’s official residence. The United Kingdom Visas and Immigration service determined that both women were victims of trafficking. They brought Employment Tribunal claims for, among other matters, discrimination, harassment and underpayment.

The Employment Tribunal held that article 31(1)(c) of the Vienna Convention on Diplomatic Relations, read consistently with the European Convention on Human Rights, removed diplomatic immunity. The Employment Appeal Tribunal allowed the respondents’ immunity appeal but held that service had been validly effected: [2013] UKEAT 0403_12_0410.

Ms Reyes appealed on immunity. The respondents cross-appealed on service. The central issues were whether domestic employment, including employment involving trafficking, fell within the commercial-activity exception to immunity; whether immunity breached articles 4 or 6 of the European Convention on Human Rights; and whether postal service was valid.

1. Appeal and cross-appeal dismissed. The Employment Appeal Tribunal was right to uphold diplomatic immunity against Ms Reyes’s claim, and right to hold that the claim form had been validly served at the respondents’ private residence.

2. Applying article 31(1) of the Vienna Convention on the Law of Treaties, article 31(1)(c) of the Vienna Convention on Diplomatic Relations concerned private professional or commercial activities undertaken for profit. A contract to provide domestic services at a diplomat’s official residence was incidental to daily diplomatic life and facilitated the performance of diplomatic functions. It was therefore not commercial activity outside official functions. The court approved the approach in Tabion v Mufti and that of Laws J in Propend Finance Pty Ltd v Sing.

3. Alleged trafficking did not alter that conclusion. Whether an employer was engaged in commercial activity depended on the work for which the employee was engaged, not on unlawful remuneration or the circumstances leading to the contract. The anti-trafficking instruments and article 4 of the European Convention on Human Rights contained no established international-law rule displacing diplomatic immunity. The court applied the reasoning in Jones v Saudi Arabia [2007] 1 AC 270: a grave substantive prohibition did not itself create an ancillary procedural exception to an established immunity.

4. Assuming article 6 of the European Convention on Human Rights applied, immunity pursued the legitimate aim of compliance with international law. Under Fogarty v United Kingdom (2002) 34 EHRR 12, a restriction reflecting generally recognised rules of public international law was not, in principle, disproportionate. Diplomatic immunity remained compatible with article 6.

5. Inviolability prohibited personal service at a mission or on a diplomatic agent. It did not prohibit postal service. Postal delivery involved no entry onto inviolable premises and gave practical effect to the Convention’s express exceptions to immunity. Under the applicable tribunal rules, posting the claim form to the private residence was good service.

• Court of Appeal (Civil Division): Dismissed Ms Reyes’s appeal against immunity and dismissed the respondents’ cross-appeal on service in this judgment, [2015] EWCA Civ 32.
• Employment Appeal Tribunal: Upheld the respondents’ claim to diplomatic immunity, but held that service had been validly effected: [2013] UKEAT 0403_12_0410.
• Employment Tribunal: Held that the commercial-activity exception applied and that the respondents had no diplomatic immunity. It also accepted that service was valid.