June 14, 2019
JW brought a claim against her Saudi diplomat employer who had bought her to the UK as a domestic servant. The facts of her claim involve working for over 16 hours a day, for months, without any breaks or days off, being unable to leave the diplomat’s residence and the promised wages being withheld. JW instructed Wilsons Solicitors LLP and was represented by Philippa Webb of Twenty Essex Chambers in an employment tribunal hearing last month. The diplomat asserted that JW’s case should be struck out on the basis that his diplomatic status protected him from such claims.
The Employment Tribunal held that the current Saudi diplomat is not immune from the civil jurisdiction in relation to claims instituted by his domestic servant in relation to work in his home in assumed conditions of human trafficking and modern slavery. The Judge interpreted the exception to diplomatic immunity for a “commercial activity exercised the diplomatic agent in the receiving state outside his official functions” (Article 31(1) (c) of the Vienna Convention on Diplomatic Relations 1961, incorporated into English law by the Diplomatic Privileges Act 1964) as applying to the trafficking and employment of a domestic servant in conditions of modern slavery.
Observing that “it would be difficult for a court to forsake what it perceived as a legally respectable solution”, the Judge refused to strike out the case.The Judgment is groundbreaking because it holds that a current diplomat is not immune in relation to claims of human trafficking and modern slavery. In October 2017, the UK Supreme Court in Reyes v Al-Malki had held that a former diplomat was not immune in those circumstances, but the Justices had been split (3-2) on whether a current diplomat still enjoyed immunity.
The Employment Tribunal has adopted the dicta reasoning of the majority in the Supreme Court (Lord Wilson, with whom Lady Hale and Lord Clarke agreed) that the commercial activity exception must be interpreted taking into account the relevant rules of international law including the universal determination of the international community to combat human trafficking. The “relevant activity” for the commercial activity exception to apply is not just the employment, but the trafficking and servitude of the domestic worker. The exploitation of the domestic worker by the employer drives the entire trafficking chain, from the recruitment overseas to the harsh working conditions without proper pay.The Judgment transforms the dicta of the Supreme Court into a ratio that can be applied in other cases, advancing the commitment of the international community, and the United Kingdom in particular, to end modern slavery.
Nusrat Uddin of Wilsons Solicitors LLP:
“We are extremely pleased with the judgement which has far reaching implications for victims of trafficking and modern slavery who are ill-treated by their diplomat employers. These claims ensure that victims are able to assert their rights in the face of such exploitation. We hope that this acts as a deterrent against abuse from such employers going forward.”
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