Basfar v Wong

It is incorrect to treat every private employment by a serving diplomat as a "commercial activity" for the purposes of Article 31(1)(c) of the Vienna Convention on Diplomatic Relations 1961. Rather, "commercial activity" means practising a profession or carrying on a business so as to amount to setting up shop or participating in a business. Employment of domestic staff for purely personal domestic purposes will not ordinarily be a commercial activity even where exploitation or trafficking is alleged. The Court of Appeal and the reasoning of Lords Sumption and Neuberger represent the current persuasive legal position on that question.

The claimant, recruited abroad as a domestic servant, alleged trafficking and multiple employment-rights breaches by a serving diplomat who employed her at his diplomatic residence in the UK. The respondent applied to strike out the claims on the basis of diplomatic immunity under Article 31(1)(c) of the Vienna Convention on Diplomatic Relations 1961 as enacted by s.2(1) of the Diplomatic Privileges Act 1964. The Employment Tribunal rejected immunity and treated the Court of Appeal decision in Reyes as persuasive only. On appeal to the Employment Appeal Tribunal the respondent challenged that approach, raising a further question about the doctrine of precedent and the proper weight to give to the various speeches in Reyes. The EAT allowed the appeal and held that the current state of the law on "commercial activity" is represented by the Court of Appeal together with Lords Sumption and Neuberger in the Supreme Court, so that diplomatic immunity succeeds on the assumed facts (see paras [55]-[73]; [101]-[114]).

(1) Appeal allowed. The Employment Tribunal's dismissal of the respondent's strike-out application on diplomatic immunity was set aside. The defence of diplomatic immunity succeeds on the assumed facts and the respondent is immune from the claimant's civil claims under Article 31(1)(c) as presently understood (disposition).

(2) Precedent: A Court of Appeal decision on a particular issue may cease to bind when the appeal proceeds to the Supreme Court and the Supreme Court decides the litigation on different grounds so that the issue does not form part of the Supreme Court's binding ratio. The EAT agreed with authorities treating the litigation as a continuous whole and followed that approach. Lower courts are not bound by the Court of Appeal's reasoning on the issue where the highest court in the same litigation has decided the case on a different basis (analysis and conclusion on precedent) (see paras [55]-[73]; [89]-[100]).

(3) Meaning of "commercial activity": The phrase requires the diplomat to be practising a profession or carrying on a business in the sense of setting up shop or participating in carrying on a business. Private employment of domestic staff for purely personal domestic purposes is ordinarily not commercial activity. The EAT considered the detailed reasoning of the Court of Appeal and the views of Lords Sumption and Neuberger as representing the current state of the law on that point and gave them greatest weight (reasoning and guidance) (see paras [101]-[114]).

(4) Weight of non-binding Supreme Court observations: Tentative or doubtful observations of other Supreme Court Justices, though important, attract less weight where other higher-court judgments have reached a clear, detailed and reasoned conclusion on the same point. A lower court should give greater persuasive weight to emphatic and reasoned conclusions even if non-binding, but should not treat them as binding (methodology for assessing dicta) (see paras [82]-[100]).

(5) Practical order: The Employment Appeal Tribunal allowed the respondent's appeal and restored the immunity defence; consequential procedural outcome follows from that disposition (final order).

• Employment Appeal Tribunal: Appeal from the Employment Tribunal allowed; held defence of diplomatic immunity succeeds (31 January 2020).
• Employment Tribunal (London Central): Application to strike out claimant's ET1 dismissed; held diplomatic immunity not to apply (Judgment sent 13 June 2019).