Basfar v Wong
| Jurisdiction | UK Non-devolved |
| Neutral Citation | UKEAT/223/19 |
| Date | 2020 |
| Year | 2020 |
| Court | Employment Appeal Tribunal |
Conflict of laws - Sovereign immunity - Diplomatic immunity - Employment - Claimant employed to carry out domestic work for diplomat at diplomatic residence - Claims of constructive dismissal and failure to pay national minimum wage - Employer claiming diplomatic immunity - Claimant claiming to be victim of modern slavery - Whether claimant’s employment “commercial activity” exercised by diplomat -
The claimant was employed by the respondent, a diplomat, in Saudi Arabia, before being brought to the United Kingdom to work for him as a domestic servant in his diplomatic household. In order to obtain the necessary visa she was issued with a statement of conditions of employment, which included payment of the national minimum wage and her working hours. She asserted that her treatment bore no relation to those terms and conditions and that she was the victim of modern slavery, who had been trafficked to the United Kingdom and exploited by the employer and his family. She made complaints to an employment tribunal of, inter alia, wrongful constructive dismissal, failure to pay the national minimum wage and unlawful deductions from her wages. At a preliminary hearing, an employment judge refused an application by the respondent to strike out the claim on grounds of diplomatic immunity, pursuant to article 31(1) of the Vienna Convention on Diplomatic Relations (1961), as scheduled to the Diplomatic Privileges Act 1964F1. The employment judge decided that a Court of Appeal decision, in a case involving similar assumed facts, that “commercial activity” in article 31(1)(c) did not include the trafficking and employment of a domestic servant in conditions of modern slavery by a diplomat, was not binding in circumstances where the Supreme Court had allowed an appeal in that case on a different ground; and, having regard to, inter alia, obiter observations by three of the justices in the Supreme Court, the judge held that such activity did relate to “commercial activity” exercised by a diplomat “outside his official functions” and so came within the exception to diplomatic immunity in article 31(1)(c).
On an appeal by the respondent—
Held, allowing the appeal, that a decision of the Court of Appeal on a particular issue ceased to bind that court when an appeal to the Supreme Court was allowed on other grounds and the issue did not fall for decision; that, therefore, the Court of Appeal decision on similar assumed facts that a respondent diplomat was entitled to diplomatic immunity, while persuasive, did not bind that court or lower courts, since the true ratio was that on which the case was decided in the Supreme Court; that, in deciding the right answer to the question of law falling for decision, it was right for the appeal tribunal to give greater weight to those judgments of the higher courts which provided a clear conclusion on the point and lesser weight to judgments which expressed doubts; that the Court of Appeal had reached a clear and fully reasoned decision, on assumed facts akin to those in the present case, that the treatment of the claimant was not “commercial activity”, and that view had been endorsed by two justices of the Supreme Court, whereas the observations of the other three justices had been expressed in relatively tentative terms; and that the Court of Appeal decision should be taken to represent the current state of the law on the meaning of “commercial activity” in article 31(1)(c) of the Vienna Convention, and, accordingly, the respondent’s defence of diplomatic immunity succeeded (post, paras 57, 63, 77, 80–84).
The following cases are referred to in the judgment:
Al-Malki v Reyes (Secretary of State for Foreign and Commonwealth Affairs intervening) [
Benkharbouche v Embassy of the Republic of Sudan (Secretary of State for Foreign and Commonwealth Affairs intervening)
Brownlie v Four Seasons Holdings Inc
Helena Partnerships Ltd v Revenue and Customs Comrs (Attorney General intervening)
Iranian Offshore Engineering and Construction Co v Dean Investment Holdings SA (formerly Dean International Trading SA)
OPO v MLA
Propend Finance Pty Ltd v Sing (
R v Diggines, Ex p Rahmani [
R v Secretary of State for the Home Department, Ex p Al-Mehdawi [
Sabbithi v Al Saleh (
Tabion v Mufti (
Thorpe v Revenue and Customs Comrs
Young v Bristol Aeroplane Co Ltd [
APPEAL from an employment judge sitting at London Central
By a decision on a preliminary hearing, sent to the parties on 13 June 2019, the employment judge refused an application by the respondent, Khalid Basfar, to strike out complaints by the claimant, Ms J Wong, of inter alia, constructive dismissal, failure to pay the minimum wage and unlawful deductions from wages. The claimant alleged that she had been trafficked to the United Kingdom to work as a domestic servant in the respondent’s diplomatic household and had been kept in conditions of modern slavery. The tribunal decided that the respondent could not claim diplomatic immunity under article 31(1) of the Vienna Convention on Diplomatic Relations (1961) so as to bar her claims on the ground that the exception to diplomatic immunity in article 31(1)(c) of the Convention for “professional or commercial activity” exercised by the diplomat “outside his official functions” applied. The respondent appealed on the grounds that the employment judge had erred in law in deciding that the Court of Appeal decision on the meaning of “commercial activity” in a similar case was only persuasive, since the Supreme Court had overturned the decision on a different ground and that he was wrong in concluding that the Court of Appeal’s judgment in that case was not binding on lower courts, and in preferring the non-binding observations of three justices of the Supreme Court on the meaning of commercial activity to those of the Court of Appeal and two Supreme Court justices
The facts are stated in the judgment, post, paras 4–6.
Mohinderpal Sethi QC and Sophia Berry (instructed by
Philippa Webb and Ishaani Shrivastava (instructed by
The court took time for consideration.
31 January 2020. SOOLE J handed down the following judgment.
1 This appeal concerns the defence of diplomatic immunity. The particular question is whether a serving diplomat’s employment of a “trafficked” domestic servant at his diplomatic residence constitutes a “commercial activity exercised … outside his official functions” within the meaning of article 31(1)(c) of the Vienna Convention on Diplomatic Relations (1961) as enacted into domestic law by section 2(1) of the Diplomatic Privileges Act 1964. The appeal in turn raises a question on the doctrine of precedent. I will refer to the parties as the claimant and respondent.
2 The respondent appeals from the judgment of an employment tribunal at London Central (Employment Judge Brown) sent to the parties on 13 June 2019 following a hearing on the respondent’s application that the claimant’s claims should be struck out on the ground of diplomatic immunity. The tribunal dismissed the application.
3 The application proceeded on the agreed basis that the claimant’s case should be considered at its highest, i e on assumed facts, as pleaded in her ET1 claim. In essence, this is that in circumstances of modern slavery the claimant was trafficked by the respondent to the United Kingdom in order to work as a domestic servant in his diplomatic residence.
4 The assumed facts may be taken shortly from the judgment. The claimant is of Philippine nationality. She was employed by the diplomatic household of the respondent in Saudi Arabia from November 2015. On 1 August 2016 she was brought to the United Kingdom to continue working for the respondent in this country. The United Kingdom Border Agency issued her with an overseas domestic workers visa as a private servant in a diplomatic household. In order to obtain that visa she was provided with a contract or statement of main terms and conditions of employment. These included employment to work eight hours a day, 50 hours per week, with 16 hours free time each day and one day off work each week and one month off each year. She was to be provided with sleeping accommodation and paid at the national minimum wage.
5 On the assumed but disputed facts, her employment and treatment bore no relation to these apparent terms and conditions...
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Basfar v Wong
...the commercial activity exception to diplomatic immunity. The tribunal therefore refused to strike out the claim. The Employment Appeal Tribunal [2020] ICR 1185 (Soole J sitting alone) allowed Mr Basfar's appeal against this decision but issued a certificate that the case was suitable for a......
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Basfar v Wong
...the commercial activity exception to diplomatic immunity. The tribunal therefore refused to strike out the claim. The Employment Appeal Tribunal [2020] ICR 1185 (Soole J sitting alone) allowed Mr Basfar's appeal against this decision but issued a certificate that the case was suitable for a......
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J Alicante v A A Ahmad E M H Alfailakawi: 2207015/2020
...was apparent that a referral in a similar case had been made to the Supreme Court in Basfar v Wong in respect of which the Employment Appeal Tribunal [2020] ICR 1185 had allowed Mr. Basfar’s appeal against the first instance Employment Tribunal’s decision but then issued a certificate that ......
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Modern Slavery and the Commercial Activity Exception to Diplomatic Immunity From Civil Jurisdiction: The UK Supreme Court's Decision in Basfar v Wong
...the diplomatic agent inthe receiving State outside his ocial functions’.139 See for example Reyes (SC) n 4 above at [68]; Basfar vWo ng [2020] ICR 1185 (Basfar vWo n g(EAT)) at [78].10 Basfar vWon g ( EAT )ibid at [78]. Judge Brown,in the Employment Tribunal decision strikingout Mr Basfar’......