Today the EAT has handed down judgment in the case of Basfar v Wong. This case becomes the first to be granted permission for a 'leapfrog' appeal from the EAT straight to the Supreme Court.
Does a diplomat’s employment of a ‘trafficked’ domestic servant in his residence, constitute a ‘commercial activity exercised…outside his official functions’ within the meaning of Article 31(1)(c) of the Vienna Convention on Diplomatic Relations 1961?
No held the EAT in Basfar v Wong.
The Claimant was employed by the Respondent diplomat to work as a domestic servant at his diplomatic residence in the UK. She previously worked for the Respondent at his residence in Saudi Arabia.
The Claimant alleged that she was the victim of trafficking by the Respondent and that her working conditions amounted to modern slavery. She brought claims for wrongful dismissal, unlawful deductions from wages, failure to pay the NMW and supply wage slips, and breach of the Working Time Regulations.
The Respondent denied all the claims on the basis of diplomatic immunity and applied to have them struck out. He argued that his employment of the Claimant did not amount to ‘commercial activity exercised…outside his official functions’.
The tribunal dismissed the strike out application and the defence. It held that the Court of Appeal decision in Reyes (with similar assumed facts) was not binding where the same case had been allowed to proceed to the Supreme Court on a different ground.
It also held that the non-binding observations of Lady Hale, Lord Clarke and Lord Wilson on the meaning of ‘commercial activity’ in Reyes were preferential to the judgment of the Court of Appeal and the conclusions of Lord Sumption and Lord Neuberger in Reyes.
The EAT disagreed, holding that the Respondent’s defence of diplomatic immunity succeeded. The Supreme Court decision in Reyes set out the current legal position.
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