Basfar v Wong

A diplomat’s ordinary employment of a domestic worker is incidental to daily life and is not a commercial activity within article 31(1)(c) of the Vienna Convention on Diplomatic Relations 1961. The position is materially different where the diplomat coerces a worker into providing domestic services in circumstances of modern slavery and thereby obtains a substantial financial benefit.

Such systematic exploitation for personal profit is a commercial activity outside the diplomat’s official functions. An employment claim relates to that activity where its subject matter has a significant connection with the exploitation. The unlawfulness of the conduct does not itself make the activity commercial. Nor does the possible need for a factual hearing prevent the commercial activity exception from applying.

The appellant, a migrant domestic worker, brought employment tribunal claims for unpaid wages and breaches of employment rights against the respondent, a serving diplomat. She alleged that he had confined, isolated and psychologically abused her, required exceptionally long working hours, and paid only a small fraction of her contractual entitlement. For the strike-out application, those allegations had to be assumed to be true.

The Employment Tribunal held that the claim fell within the commercial activity exception to diplomatic immunity and refused to strike it out. The Employment Appeal Tribunal allowed the diplomat’s appeal: [2020] ICR 1185. It certified a leapfrog appeal to the Supreme Court.

The central issue was whether exploiting a domestic worker in circumstances of modern slavery constituted a “commercial activity exercised” by a diplomatic agent outside his official functions under article 31(1)(c) of the Vienna Convention on Diplomatic Relations 1961.

1. Appeal allowed by a majority of three to two. Lord Briggs and Lord Leggatt, with whom Lord Stephens agreed, held that the assumed facts brought the claim within article 31(1)(c) of the Vienna Convention on Diplomatic Relations 1961. The Employment Tribunal’s refusal to strike out the claim was reinstated. Unless the allegations were admitted, an evidential hearing was required to determine their truth.

2. Ordinary employment of a domestic worker by a diplomat is not itself a commercial activity. Contracts for domestic and other services incidental to ordinary daily life fall within the rationale of personal diplomatic immunity. They enable diplomats and their families to live in the receiving state without the hindrance of civil litigation. Such private activities are nevertheless outside the diplomat’s official functions.

3. The alleged exploitation was qualitatively different from voluntary employment. The worker was allegedly confined and isolated, subjected to psychological abuse, deprived of pay and made dependent upon the diplomatic household. The diplomat’s control over her person and labour was capable of amounting to domestic servitude and forced labour. The precise classification as trafficking, servitude or forced labour was unnecessary.

4. The alleged conduct produced a substantial benefit in money’s worth. The household obtained services over a prolonged period for a fraction of their contractual and market value. A deliberate and systematic activity extracting coerced labour for such personal profit was properly characterised as a commercial activity. Its unlawfulness or incompatibility with human rights was not, by itself, what made it commercial.

5. The words “relating to” require a significant connection between the subject matter of the action and the commercial activity. The wage, working-time and minimum-wage claims arose directly from and formed part of the alleged exploitation. It was unnecessary for trafficking, servitude or forced labour to constitute a cause of action within the Employment Tribunal’s jurisdiction.

6. The possibility of a disputed and intrusive factual inquiry did not narrow the exception. The states parties necessarily contemplated that courts might have to determine whether an alleged activity was commercial.

7. Lord Hamblen and Lady Rose dissented. They considered that the conditions of domestic employment could not convert an activity incidental to household life into a commercial activity. In their view, neither subsequent international instruments concerning modern slavery nor state practice established the broader meaning adopted by the majority.

1. United Kingdom Supreme Court: By a majority of three to two, allowed the leapfrog appeal and reinstated the Employment Tribunal’s refusal to strike out the claim: [2022] UKSC 20.

2. Employment Appeal Tribunal: Soole J allowed the diplomat’s appeal and held that diplomatic immunity required the claim to be struck out. He certified the case as suitable for a leapfrog appeal: [2020] ICR 1185.

3. Employment Tribunal: Held that the alleged conduct fell within the commercial activity exception and refused to strike out the claim.