Although diplomats generally have immunity from civil claims under the Vienna Convention, the Supreme Court has held in Wong v Basfar that the trafficking and exploitation of a domestic worker constitutes an exception to the rule. If Ms Wong proved her allegations of domestic servitude at her tribunal hearing, therefore, Mr Basfar would not have diplomatic immunity in the British courts.


Basic facts

Ms Wong, a Philippines national, accompanied Mr Basfar (a diplomat representing the Kingdom of Saudi Arabia in the UK) and his family to the UK in August 2016 to work as a domestic servant.

Ms Wong claimed that she was forced to work in circumstances that amounted to modern slavery, which included being confined to the house and being made to work from 7am to 11.30pm each day, with no days off or rest breaks. She also claimed that she was not paid anything for seven months and then only a fraction of what she was owed.

She lodged tribunal proceedings against Mr Basfar for unpaid wages and breaches of employment rights. He applied to have the claim struck out under article 31 of the Vienna Convention on Diplomatic Relations 1961. This gives diplomats immunity from civil claims unless they fall within the exception of “any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his [sic] official functions”.


Decisions of lower courts

Although the employment tribunal declined to strike out Ms Wong’s claims, the EAT allowed Mr Basfar’s appeal. It then issued a certificate allowing the case to be appealed directly to the Supreme Court, thereby 'leapfrogging' the Court of Appeal.


Decision of Supreme Court

The majority of the Supreme Court judges agreed with Mr Basfar that the act of employing a domestic worker by a diplomat did not necessarily constitute a “commercial activity” within the meaning of the exception. In order to ascertain whether it did, it was necessary to exclude “activity that is incidental to the ordinary conduct of daily life” of diplomats and their families, such as buying goods and services for personal use.

It follows that the exclusion would apply to the trafficking and exploitation of a domestic worker as that was clearly not comparable to an ordinary employment relationship. Instead, there was a “material and qualitative difference between these two activities”. On the one hand, employment is “a voluntary relationship, freely entered into and governed by the terms of a contract”; whereas the essence of modern slavery is that work is extracted by coercing and controlling the victim.

On the assumed facts of this case, the Supreme Court said that the extent of Mr Basfar’s control over Ms Wong was “so extensive and despotic as to place her in a position of domestic servitude”. He had also enjoyed the benefit of her services for almost two years which constituted a “substantial financial benefit”. Because that benefit was gained by a deliberate and continuing course of conduct, it could be properly characterised, in the view of the court, as “the exercise of a commercial activity”.

In the view of the majority, the appropriate criteria for distinguishing between ordinary domestic employment arrangements incidental to the daily life of a diplomat and exploitation of a domestic worker for profit which falls within the exception of “commercial activity” are the concepts of servitude, forced labour and human trafficking. As this case fell within all these categories, it was a paradigm example of domestic servitude.

The majority of the court, therefore, concluded that, if Ms Wong proved the allegations at her tribunal hearing, Mr Basfar would not have immunity from the civil jurisdiction of the British courts.