The Employment Appeal Tribunal (EAT) has held in Basfar v Wong that foreign diplomats based in the UK can claim immunity from tribunal complaints made by domestic servants on the basis that they do not fall within the exception of a “commercial activity exercised … outside … official functions."
Ms Wong, who is of Philippine nationality, was brought to the UK by Mr Basfar to work as a domestic servant in his diplomatic residence, having worked in a similar capacity for him in Saudi Arabia.
In order to obtain an overseas domestic work visa for her from the UK Border Agency, Mr Basfar had to provide a contract of employment setting out her terms and conditions. These stipulated that she was required to work eight hours a day, that she was entitled to a day off per week and was to be paid the National Minimum Wage (NMW).
However, Ms Wong subsequently claimed that she was a victim of international trafficking and that her conditions amounted to modern slavery. She brought a number of claims including wrongful (constructive) dismissal, failure to pay the NMW, unlawful deductions from wages and claims under the Working Time Regulations (WTR).
Mr Basfar applied to strike out all the claims on the basis of diplomatic immunity, arguing that his employment of Ms Wong did not fall within the exception of a “commercial activity exercised … outside … official functions” within the meaning of Article 31(1)(c) of the Vienna Convention on Diplomatic Relations 1961.
Article 31(1)(c) states that immunity does not apply to “an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his [sic] official functions."
The tribunal dismissed the application to strike out her claims as well as the defence of diplomatic immunity.
In doing so, it held that the decision of the Court of Appeal in the case of Reyes v Al-Malki (that the employment of a domestic servant did not fall within the commercial activity exception) was not binding. This was because the appeal had been allowed to proceed to the Supreme Court (weekly LELR 549), albeit on another ground.
Not only did the Supreme Court find in favour of the domestic servant, it also expressed the view (although this was not part of the official judgement) that the employment of a domestic servant falls within the exception of “commercial activity” in article 31(1)c.
Preferring this view expressed by the majority in the Supreme Court in their obiter dicta (non-binding comments), the tribunal reasoned that Ms Wong’s employment must also fall within the exception and immunity did not therefore apply.
The EAT agreed with the tribunal but only to the extent that the decision of the Court of Appeal in Reyes with regard to “commercial activity” was not binding on it. This was because cases have to be viewed as “one continuous and unfragmented piece of litigation” meaning that the only true reason for a decision must always be found at the highest level in the particular litigation. In this case that was the Supreme Court.
However, it disagreed with the tribunal’s decision that it was bound by the obiter dicta of the majority of the Supreme Court. Instead it needed to give greater weight to “judicial observations” which had reached “emphatic conclusions on the point”, such as in the Court of Appeal. It was also wrong to have assumed that the majority of the Supreme Court would have adopted the comments. As such, the current state of the law was represented by the minority in the Supreme Court and the Court of Appeal.
It therefore held that the defence of diplomatic immunity succeeded.
This case shows the difficulties that can arise when there is no binding authority: the EAT noted that it was “a somewhat invidious task for a lower tribunal” to weigh up the persuasiveness of conflicting judgments of higher courts, and indeed elected to grant the first ever “leapfrog” appeal direct to the Supreme Court.