Modern slavery
In November 2015 in Saudi Arabia, the victim was employed by Mr Basfar, a member of the diplomatic staff of the Kingdom of Saudi Arabia. In August 2016 she was brought to the United Kingdom to continue working for him there. To obtain a visa to enter the country, the victim was provided with an employment contract stating that she was employed by Mr Basfar to work a maximum of eight hours a day, with one day off each week and one month off each year; she was to be provided with sleeping accommodation and paid the national minimum wage.
After arriving in the UK, the victim alleged that she was confined at all times to Mr Basfar’s house except to take out the rubbish. She was held virtually incommunicado, being allowed to speak to her family only twice a year using Mr Basfar’s mobile telephone. She was made to work from 7am to around 11.30pm each day, with no days off or rest breaks, and was required to wear a door-bell at all times so that she was at the family’s beck and call 24 hours a day. She was shouted at incessantly and regularly called offensive names. When the family was at home, the victim was only allowed to eat their left-over food; if they were out, she could cook something for herself.
After arriving in the UK, the victim was paid nothing for seven months until Mr Basfar and his wife took her with them to Jeddah on their holiday in July 2017: during this trip she was paid 9,000 Saudi Riyals (approximately £1,800) for six months in one lump sum. After that, she was not paid again.
In May 2018, the victim managed to escape.
沙特阿拉伯大不列颠及北爱尔兰联合王国Employment Tribunal
The victim brought a claim against Mr Basfar in an employment tribunal for wages and breaches of employment rights. Mr Basfar applied to have the claim against him struck out on the ground that he is immune from suit because of his diplomatic status.
The employment tribunal held that the victim’s claim comes within the commercial activity exception to diplomatic immunity.
Employment Appeal Tribunal
The Employment Appeal Tribunal allowed Mr Basfar’s appeal against the decision of the Employment Tribunal but issued a certificate that the case was suitable for an appeal by Ms Wong directly to the Supreme Court “leapfrogging” the Court of Appeal.
United Kingdom Supreme Court
Under the Vienna Convention on Diplomatic Relations 1961, diplomatic agents enjoy complete immunity from the criminal jurisdiction of the receiving state and are also generally immune from its civil jurisdiction. However, an exception for civil claims exists relating to “any professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official functions”. The question raised on this appeal was whether exploiting a domestic worker in the manner alleged constitutes “exercising” a “commercial activity” within this exception.
The United Kingdom Supreme Court held that the claim brought by the victim fell within the exception from immunity provided for in the Vienna Convention on Diplomatic Relations. Therefore, if the Employment Tribunal determines that the allegations are true, Mr. Basfar would not have immunity from the civil jurisdiction of the courts in the United Kingdom.
Reasoning: the Supreme Court found that while employment of a domestic worker does not, in itself, ordinarily constitute the exercise of a “commercial activity” by a diplomatic agent, employment that is a form of modern slavery, whether that was forced labour, servitude or trafficking, amounts to a commercial activity practised for personal profit.
Indeed, the court considered that employment is a voluntary relationship that is freely entered into. On the other hand, modern slavery is not freely undertaken. Such exploitation falls outside the sphere of ordinary contracts incidental to the daily life of the diplomat and family members which the immunity serves to protect.
The court found that Mr Basfar’s treatment of the victim, on the alleged facts, amounted to a form of modern slavery. Mr. Basfar made a substantial financial gain from the exploitation and the exploitation was carried on over a signification period.
Mr. Basfar is a member of the diplomatic staff of the mission of the Kingdom of Saudi Arabia in the United Kingdom
It is the first case in the world in which a leading court has concluded that the alleged exploitation of a domestic worker in circumstances of modern slavery falls within the “commercial activity” exception to diplomatic immunity in Article 31(1)(c) of the Vienna Convention on Diplomatic Relations 1961.