On 31 January 2020 the Employment Appeal Tribunal handed down judgment in Basfar v Wong [2020] ICR 1185, [2020] IRLR 248. CLICK HERE to read the judgment. The case is presently the leading authority on diplomatic immunity and is the first (and only) EAT case to ever be granted permission to appeal directly to the Supreme Court. The Supreme Court is to hear the appeal against the EAT’s judgment on 13 and 14 October 2021.
Mohinderpal Sethi KC, Sophia Berry and Bláthnaid Breslin continue to represent 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 claiming wrongful dismissal and the infringement of various statutory employment rights. 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 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 Supreme Court is to will now definitively determine the correct interpretation of article 31(1) of the Vienna Convention on Diplomatic Relations 1961 at the appeal hearing in October.
Mohinderpal Sethi KC, Sophia Berry and Bláthnaid Breslin are instructed by Patrick Brodie, Head of Employment, Pensions and Incentives at RPC.
