The Employment Tribunal held on 13 June 2019 that a current Saudi diplomat is not immune from the civil jurisdiction in relation to claims instituted by his domestic servant relating 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 by 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 [2017] UKSC 61 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.

Philippa Webb (instructed by Nusrat Uddin of Wilsons Solicitors LLP) acted for the Claimant.