The claimant was employed by the diplomatic household of the respondent originally in Saudi Arabia (the defendant’s home country) but then moved to the UK in 2016 where she continued to work. The claimant alleges that the continuation of work in this way constituting trafficking on the basis that she was confined to the property (with the exception of taking out the rubbish). The claimant had no days off, no rest breaks, had to typically work from 7am to 11.30pm and was subject to degrading treatment.  

The claimant outlined that she was not paid for seven months before receiving a fraction of her contracted pay.  She ‘escaped’ in May 2018 and proceeded to bring various claims relating to the lack of pay. The defendant relied upon diplomatic immunity under the Vienna Convention. 

The issue, in relation to diplomatic immunity, arose in relation to the interpretation of Article 31(1)(c) of the Vienna Convention. It stipulates that there is general immunity but there is an exception relating to professional or commercial activity which is outside the official functions of the diplomat.   The Tribunal, at first instance, held that diplomatic immunity did not apply as the arrangement could be regarded as ‘commercial’. However, the EAT found that the employment of an in-house worker was not a commercial activity as was intended through Article 31 of the Vienna Convention. This case was then ‘leapfrogged’ to the Supreme Court. 

By a bare majority the Supreme Court held that the defendant did not have diplomatic immunity to the claims as it fell within the exception. The majority actually held that normal employment situations for an in-house domestic helper would not normally fall into the exception. However, where the domestic work was compelled and fell into the category of ‘modern slavery’ then that is not akin to ordinary employment and it is not incidental to the daily life of a diplomat. The extent of the control and financial benefit obtained by the defendant in this case meant that it could be accurately described as ‘commercial activity’. As a result, the defendant did not have immunity.   

Practical Lessons

With the recent revelations about Sir Mo Farah and how he entered the UK (which involved allegations of modern slavery) this case also demonstrates how such circumstances can and do arise. It is unlikely that many cases of this type will arise but the Supreme Court holding such ‘employment’ to be a commercial activity and thus not falling into the category of diplomatic immunity is such that it will give greater protection. It may be seen as a slight widening of the exception and it may be interesting to see if this is applied to a greater extent in future when it comes to those employees of diplomats seeking to rely upon their rights. 
https://www.supremecourt.uk/cases/uksc-2020-0155.html