On 6 July 2022 the Supreme Court handed down its landmark decision in Basfar v Wong  UKSC 20. This is the first ever case to be granted permission to ‘leapfrog’ appeal directly from the EAT to the Supreme Court. The Supreme Court’s decision is now the leading authority on diplomatic immunity.
Mohinderpal Sethi QC, Sophia Berry and Bláthnaid Breslin represented Mr Basfar, a member of the diplomatic staff of the mission of the Kingdom of Saudi Arabia in the United Kingdom.
The Appellant, Ms Wong, was employed as a domestic worker in the diplomatic household of Mr Basfar. She brought claims in the employment tribunal for wages and alleged breaches of her employment rights. Ms Wong alleged that she had been trafficked to the UK. The Respondent, Mr Basfar, applied to strike out her claims on the basis of diplomatic immunity under Article 31 of the Vienna Convention on Diplomatic Relations 1961 (the “VCDR”). The Appellant relied on the “commercial activity” exception to diplomatic immunity under Article 31(1)(c) VCDR. The appeal proceeded on the basis of assumed but disputed facts, as pleaded in the Appellant’s claim form.
The Tribunal dismissed the application for strike out. The Respondent successfully appealed to the Employment Appeal Tribunal  ICR 1185,  IRLR 248. For the first time, the EAT granted a ‘leapfrog’ certificate under section 37ZA(1) of the Employment Tribunals Act 1996 to enable an appeal directly to the Supreme Court.
In a landmark decision, the Supreme Court allowed the appeal, by a majority of 3-2 (Lord Hamblen and Lady Rose dissenting).
The majority (Lord Leggatt and Lord Briggs, with whom Lord Stephens agreed) held that diplomatic immunity does not apply where a claim relates to an employment relationship that is not “freely entered into” but amounts to “a form of modern slavery”, whether it be forced labour, servitude or human trafficking (para 97). They considered that there was a material, qualitative and moral difference between a voluntary employment relationship, freely entered into, and modern slavery which is not freely undertaken but extracted by coercion and control (paras 43 and 72). The latter could not be described as incidental to the daily life of the diplomat and therefore fell within the “commercial activity” exception (para 57).
In a powerful dissent, agreeing with Mr Basfar, Lord Hamblen and Lady Rose held that there were “larger issues of international comity at stake” (para 170). They described the majority decision as “unprecedented” (para 171). The minority held that, to be a commercial activity, an employment relationship must be “part and parcel of – and hence relate to” the exercise of some overall commercial activity (para 112). The “conditions under which a person is employed or how they came to be employed” cannot convert employment which is not itself a commercial activity into one (para 113).
The decision will be of interest to commercial, employment, international and human rights law practitioners. The Supreme Court decision provides authoritative guidance on (i) the scope of diplomatic immunity and its relationship with state immunity, (ii) the principles of treaty interpretation, (iii) modern slavery, including the definition of human trafficking under the Palermo Protocol, and (iv) the ordinary meaning of “commercial activity”.
Mohinderpal Sethi QC, Sophia Berry and Bláthnaid Breslin were instructed by Patrick Brodie and Charlotte Reid at Reynolds Porter Chamberlain LLP.
Mohinderpal Sethi QC specialises in UK, international and offshore commercial, employment, partnership and sports litigation and arbitration. He is the Barrister of the Year Finalist (The Lawyer Awards 2022) and Chair of the Employment Law Bar Association. Previously, he successfully protected the sovereign interests of the Kingdom of Saudi Arabia on appeal in Reyes v Al-Malki  ICR 135,  IRLR 929. “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.
Bláthnaid Breslin specialises in employment, partnership and commercial law. She has experience as both sole counsel and as junior counsel in employment and commercial cases.