Basfar v Wong

The Supreme Court held that, on the facts assumed for the purpose of the strike-out application, the respondent diplomat did not enjoy diplomatic immunity from an employment tribunal claim brought by his former domestic worker because the conduct alleged fell within the "commercial activity" exception to article 31(1)(c) of the Vienna Convention on Diplomatic Relations 1961. The Court distinguished ordinary domestic employment (which is incidental to a diplomat's daily life and falls outside the exception) from systematic exploitation amounting to modern slavery, trafficking, forced labour or servitude. It concluded that where a diplomat extracts the labour of a domestic worker by coercion and obtains substantial benefit (including benefits in kind) over a sustained period, that exploitation is a "commercial activity exercised by the diplomatic agent" for the purposes of article 31(1)(c), so that immunity does not bar civil proceedings. The Court applied treaty interpretation rules in the Vienna Convention on the Law of Treaties 1969, considered comparative state-immunity jurisprudence and rejected arguments that human-rights treaties or the mere illegality of conduct transform the meaning of "commercial activity".

Background and procedure

Ms Wong, a Filipino national, worked as a migrant domestic worker for Mr Basfar, a member of the diplomatic staff of the Saudi mission in the UK. She alleged that she was trafficked to the United Kingdom and exploited in circumstances of modern slavery, and brought claims in the employment tribunal for unpaid wages and breaches of employment rights. Mr Basfar applied to strike out the claim on grounds of diplomatic immunity under the Vienna Convention on Diplomatic Relations 1961 (as incorporated by the Diplomatic Privileges Act 1964). The employment tribunal refused to strike out. The Employment Appeal Tribunal allowed Mr Basfar’s appeal but certified the case as suitable for a direct appeal to the Supreme Court under a leapfrog certificate (UKEAT/0223/19/BA). The Supreme Court granted permission and heard the appeal.

Issues framed

• Whether employing and exploiting a domestic worker in the manner alleged constitutes "exercising" a "commercial activity" within article 31(1)(c) of the Vienna Convention, thereby falling within the exception to diplomatic immunity.
• Whether concepts from international law on modern slavery, trafficking, forced labour and servitude affect the interpretation of "commercial activity" in article 31(1)(c).
• Whether human-rights instruments or subsequent developments in international law require a different construction of the diplomatic-immunity exception.

Facts (assumed for present purposes)

Ms Wong alleged she was employed initially in Saudi Arabia and brought to the UK in 2016 under a contract promising eight-hour days, weekly rest and the national minimum wage. After arrival she was confined to the household, effectively isolated, denied phone contact save rare calls, worked very long hours with no rest breaks, paid little or nothing (nine months’ pay in a lump sum once, then nothing), verbally abused and compelled to remain until she escaped in May 2018.

Court’s analysis and reasoning

The Court applied the Treaties Convention rules on interpretation (article 31(1) and article 32). It accepted that ordinary domestic employment is generally incidental to a diplomat’s daily life and that the article 31(1)(c) exception was not intended to cover such ordinary transactions because immunity protects diplomats’ private daily living to ensure effective performance of mission functions. However, the Court concluded that there is a material and qualitative distinction between ordinary employment and exploitation amounting to modern slavery: the latter involves coercion, control, isolation and an inability to leave. Where a diplomat systematically exploits a domestic worker and thereby obtains significant economic benefit (including benefits in kind), that exploitation is properly characterised as a commercial activity exercised by the diplomatic agent. The Court found that profit need not be in cash; economic value or savings from unpaid forced labour suffice. The Court rejected the contention that the illegality of conduct or human-rights obligations alone determine whether an activity is "commercial", but held that contemporary international law on modern slavery is relevant indirectly to identify criteria distinguishing ordinary employment from exploitive, profit-driven conduct. The Court therefore allowed the appeal and reinstated the employment tribunal’s refusal to strike out, meaning a fact-finding hearing is required.

Dissent: Two Justices disagreed. Their view was that the ordinary employment of a domestic worker—even if trafficked or exploited—does not become a "commercial activity" for article 31(1)(c) unless it is part of an identifiable commercial enterprise; they warned of uncertain boundaries, intrusive fact-finding, and risks to diplomatic reciprocity, and would have dismissed the appeal.

Appeal allowed. The Supreme Court held by a majority that, on the assumed facts, the respondent’s exploitation of the claimant amounted to a "commercial activity exercised" by him within article 31(1)(c) of the Vienna Convention on Diplomatic Relations 1961, so that diplomatic immunity did not bar the claim. The Court distinguished ordinary domestic employment (excluded from the exception) from sustained exploitation amounting to modern slavery, trafficking, forced labour or servitude which can be a commercial activity, and concluded a hearing is required to determine the facts. Two Justices dissented, preferring to preserve a narrower scope for the exception to protect diplomatic functions and reciprocity.

Employment tribunal: employment judge refused to strike out the claimant's ET1 claim. Employment Appeal Tribunal (Soole J) allowed the respondent's appeal and granted a leapfrog certificate (UKEAT/0223/19/BA) that the case was suitable for direct appeal to the Supreme Court. Supreme Court granted permission and heard the appeal, allowing the claimant’s appeal [2022] UKSC 20.