Basfar v Wong [2022] UKSC 20

Ms Wong, a Filipino domestic worker, claimed she was trafficked and exploited by diplomat Mr Basfar, working excessive hours without proper pay. The Supreme Court held that exploiting a domestic worker in circumstances of modern slavery constitutes 'commercial activity' under the Vienna Convention, thereby falling within an exception to diplomatic immunity.

Facts

Ms Josephine Wong, a national of the Philippines, was employed as a domestic worker by Mr Khalid Basfar, a Saudi Arabian diplomat in the UK. She alleged she was brought to the UK in August 2016 under false pretences regarding her employment contract. Once in the UK, she claimed she was confined to the house, held virtually incommunicado, made to work approximately 16.5 hours daily with no days off, subjected to verbal abuse, fed only leftovers, and paid virtually nothing. She escaped in May 2018 and brought employment tribunal claims for wages and breaches of employment rights.

Issues

The central issue was whether exploiting a domestic worker in circumstances amounting to modern slavery constitutes a ‘commercial activity’ within the meaning of Article 31(1)(c) of the Vienna Convention on Diplomatic Relations 1961, thereby falling within an exception to diplomatic immunity from civil jurisdiction.

Judgment

The majority (Lord Briggs, Lord Leggatt, and Lord Stephens) allowed the appeal. They held that while ordinary employment of a domestic worker does not constitute commercial activity, exploiting a worker in circumstances of modern slavery is materially and qualitatively different.

There is a material and qualitative difference between these activities. Employment is a voluntary relationship, freely entered into and governed by the terms of a contract… By contrast, the essence of modern slavery is that it is not freely undertaken. Rather, the work is extracted by coercion and the exercise of control over the victim.

The majority found that Mr Basfar made substantial financial gain from Ms Wong’s labour, which constituted a commercial activity practised for personal profit:

The deliberate and continuing course of conduct by which that benefit was gained is in our view properly characterised as the exercise of a commercial activity.

Dissent

Lord Hamblen and Lady Rose dissented, concluding that neither trafficking nor other forms of exploitation can transform what is not inherently commercial activity into one falling within the exception. They expressed concerns about the uncertainty of boundaries and the intrusive inquiries tribunals would need to conduct.

Implications

This decision establishes that diplomats cannot claim immunity from civil claims by domestic workers who have been exploited in circumstances amounting to modern slavery. The ruling provides that international law concepts of forced labour and servitude can distinguish between ordinary domestic employment (protected by immunity) and exploitative arrangements (not protected). The case significantly limits diplomatic immunity in cases of severe worker exploitation whilst acknowledging the importance of diplomatic relations.

Verdict: Appeal allowed. The claim brought by Ms Wong falls within the exception from immunity provided for in Article 31(1)(c) of the Vienna Convention on Diplomatic Relations. Mr Basfar does not have immunity from the civil jurisdiction of the UK courts if the alleged facts are proved. The judgment of the employment tribunal refusing to strike out the claim was reinstated.

Source: Basfar v Wong [2022] UKSC 20