The case of the day is Basfar v. Wong,  UKSC 20. The case is in a genre that is all too common and that I’ve written about before: a foreign diplomat or consul is accused of violating wage and hour laws or other employment laws by a domestic worker, and then he or she asserts an immunity from suit. In a variation on the theme, the diplomat or consul’s government protects its representative by refusing to execute a request for service of process or otherwise shielding him or her from the jurisdiction of the court’s in the domestic worker’s state. One of the most infamous Letters Blogatory cases, Gurung v. Malhotra, led a frustrated US district court judge to authorize service of process by email on a Indian official whom the Indian government would not serve with process, despite the clear terms of the Hague Service Convention. The case of Devyani Khobragade was similar, though it involved criminal charges. In 2017, I wrote about Reyes v. Al-Malki, an English case in the genre.
In today’s case, the UK Supreme Court returns to the topic. Josephine Wong, a Filipina migrant worker, claimed that she was a victim of human trafficking. She brought a claim against Khalid Basfar, a Saudi diplomat, for wages and breach of her rights under employment law. Her allegations were startling:
Ms Wong alleges that, after arriving in the UK, she was confined at all times to Mr Basfar’s house except to take out the rubbish. She was held virtually incommunicado, being allowed to speak to her family only twice a year using Mr Basfar’s mobile telephone. She was made to work from 7am to around 11.30pm each day, with no days off or rest breaks, and was required to wear a door-bell at all times so that she was at the family’s beck and call 24 hours a day. She was shouted at incessantly and regularly called offensive names. When the family was at home, Ms Wong was only allowed to eat their left-over food; if they were out, she could cook something for herself.
After arriving in the UK, Ms Wong was paid nothing for seven months until Mr Basfar and his wife took her with them to Jeddah on their holiday in July 2017: during this trip she was paid 9,000 Saudi Riyals (approximately £1,800) for six months in one lump sum. This was a fraction of her contractual entitlement. After that, she was not paid again.
In the Reyes case, the UK Supreme Court had rejected the claim of immunity on the grounds that the diplomat’s posting had ended during the pendency of the case. Thereafter, the court said, the former diplomat would have immunity only for acts performed in the exercise of his diplomatic functions. But in today’s case, Basfar was still acting as a diplomat, so the case could not be decided on the same grounds.
The general rule, under the Vienna Convention on Diplomatic Relations, is that a diplomat is immune from the civil jurisdiction of the receiving state’s courts, with exceptions. The key exception in the case was the exception in “an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions,” which is found in Article 31. There are many easy cases under this clause. For example, a diplomat who is also a lawyer and who practiced law on behalf of private clients could no doubt be sued for malpractice. A diplomat who opens a hardware store and negligently drops a pallet of lumber on a customer’s foot could no doubt be sued for negligence. What about employment of a domestic servant? Is that a separate commercial activity, or is it just an incident of the diplomat’s daily life? There are many US cases that take the latter view, including a leading case, Tabion v. Mufti, 73 F.3d 535 (4th Cir. 1996), and Denza’s treatise on the Vienna Convention takes the same view. The UK Supreme Court reviewed the US precedents but decided in the end that it didn’t matter whether the ordinary employment of a domestic worker is or is not commercial activity. Whatever the answer to that question, the court held that keeping a worker in conditions of “modern slavery” is “material[ly] and qualitative[ly]” different from ordinary employment.
I think the court’s point is obviously right; there is a significant difference. But does it make sense to call imprisonment and exploitation of of a modern-day slave to do work around the house a commercial activity, if hiring a worker legitimately and paying her legitimately, is not? The best argument is that when you exploit a worker by not paying her, you’re profiting, and profit is commercial. But that argument seems weak to me. I profit by shoplifting instead of paying for something for sale in a shop. But it would be odd to say that shoplifting is a commercial activity just because it is financially beneficial. The question, it seems to me, is whether domestic employment is a commercial activity. If not, then it doesn’t become commercial just because you treat your domestic employee particularly badly.
The best answer to case such as this is for the sending state to waive the diplomat’s immunity so that the lawsuit can proceed. But when the state won’t waive the immunity, we’re left with the familiar dilemma, “hard cases make bad law.”