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Mo Sethi QC and Sophia Berry in first ever leapfrog appeal from EAT to Supreme Court

On 31 January 2020 the Employment Appeal Tribunal handed down judgment in Basfar v Wong UKEAT/0223/19/BA. CLICK HERE to read the judgment. The case is now the leading authority on diplomatic immunity and the first EAT case to be granted permission to appeal directly to the Supreme Court.

Mohinderpal Sethi QC and Sophia Berry represented the successful appellant, a senior diplomat serving in the Saudi Arabian mission in London.

Following the termination of her employment as a domestic worker at the employer’s official diplomatic residence in the UK, the Claimant commenced employment tribunal proceedings against the serving diplomat. She alleged that she had been trafficked to the UK and exploited in circumstances of modern slavery by the employer (which was denied). The employer applied to strike out all of the claims on the basis of diplomatic immunity under public international law, but the tribunal dismissed that application.

Allowing the employer’s appeal, Mr Justice Soole held that the diplomat was entitled to immunity pursuant to article 31(1) of the Vienna Convention on Diplomatic Relations 1961 as enacted into domestic law by section 2(1) of the Diplomatic Privileges Act 1964. He held that the employer’s employment of the Claimant even in circumstances of assumed (but disputed) trafficking and exploitation did not fall within the ‘commercial activity’ exception in article 31(1)(c) of the Vienna Convention.

The appeal judgment is also authority on the doctrine of precedent (stare decisis). Soole J held that the true ratio of a case is to be found in the decision reached at the highest level. If the Supreme Court overturns the Court of Appeal but on different grounds and concludes that it need not reach a decision on the point decided below, then the Court of Appeal’s judgment is no longer binding. It is, however, of persuasive authority.

For the first time, Soole J granted a ‘leapfrog’ certificate under section 37ZA(1) of the Employment Tribunals Act 1996 to enable an appeal directly to the Supreme Court on the grounds that: (1) a point of law of general public importance is involved; (2) the result of the proceedings is so significant that a hearing by the Supreme Court is justified; and (3) earlier consideration by the Supreme Court outweighs consideration by the Court of Appeal.  The appeal has been recommended for expedition.

Mohinderpal Sethi QC and Sophia Berry were instructed by Patrick Brodie, Head of Employment, Pensions and Incentives at RPC

Mohinderpal Sethi QC (Co-Head of Employment) specialises in UK, international and offshore commercial, employment and partnership litigation and arbitration. Previously, he successfully protected the sovereign interests of the Kingdom of Saudi Arabia on appeal in Reyes v Al-Malki [2014] ICR 135, [2013] IRLR 929 following which his submissions on state and diplomatic immunity were upheld by the Court of Appeal and Supreme Court. He is singled out for his high-profile work on state and diplomatic immunity and is widely viewed as an expert on cases involving these issues” (Chambers & Partners).

Sophia Berry specialises in employment, partnership and commercial law. She has extensive experience in statutory and high court employment litigation and has appeared in a number of appeals as sole Counsel or as a junior to a KC.

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