Diplomatic Immunity Denied By UK Supreme Court In Relation To Alleged Breaches Of Modern Slavery Laws

• Published date: 28 July 2022
• Subject Matter: Employment and HR, Government, Public Sector, International Law, Employee Rights/ Labour Relations, International Courts & Tribunals, Human Rights
• Law Firm: Herbert Smith Freehills
• Author: Mr Andrew Cannon, Mathew Shelley and Hannah Ambrose

London is home to one of the largest diplomatic communities in the world, with over 160 embassies. In a significant judgment by a majority of three, the UK Supreme Court (the Court) in Basfar v Wong [2022] UKSC 20 has confirmed that diplomats are unable to rely on their diplomatic immunity in response to alleged breaches of modern slavery laws. The majority found that the alleged breaches fell within the "commercial activity" exception in Article 31(1)(c) of the Vienna Convention on Diplomatic Relations 1961 (the Convention) on the basis that the allegations constituted "modern slavery". The Court also considered that there is a distinction between "modern slavery", which does engage the "commercial activity" exception, and employing a domestic worker, which does not itself constitute the exercise of a "commercial activity" by a diplomatic agent within the meaning of the exception.

Under the Convention (incorporated into domestic law by the Diplomatic Privileges Act 1964), diplomats enjoy immunity from criminal proceedings, and immunity from civil proceedings subject to only very limited exceptions. Article 31(1)(c) of the Convention provides that such an exception will arise in an action relating to any commercial activity exercised by the diplomat outside their official functions, in the country in which they are posted (the commercial activity exception).

In underlying proceedings before an Employment Tribunal (the Tribunal), Ms Wong (a migrant domestic worker from the Philippines, W) claimed to be a victim of human trafficking who was forced to work for Mr Basfar (a Saudi Arabian diplomat posted to the UK, B). W made a number of allegations about her treatment by B, and also claimed that she was either not paid, or significantly underpaid, during her employment. W brought a claim for unpaid wages and breaches of her employment rights.

B applied to have the proceedings struck out based on his immunity. The Tribunal found that W's claim fell within the commercial activity exception, relying on the majority's reasoning, obiter, in Reyes v Al-Malki [2017] UKSC 61 (covered in our previous blog post here), such that the immunity conferred by the Convention did not arise. Al-Malki differed on the facts as the case concerned a diplomat no longer in post, whereas B remained in post.

B succeeded in his appeal to the Employment Appeals Tribunal (the EAT), which held that the judgments of the Court of Appeal (covered in our blog post here) and the minority of the...