Ms Reyes alleged that a Saudi diplomat and his wife had exploited her while she worked in their London home. Once his posting ended and he left the country, immunity continued only for official acts. Hiring someone to work in his household fell outside that protection.
Background
Ms Reyes, a Philippine national, worked as a domestic servant for Mr and Mrs Al-Malki at their London home from 19 January to 14 March 2011. Mr Al-Malki was then a member of the diplomatic staff of the embassy of Saudi Arabia. She alleged that she had entered the United Kingdom on a visa obtained with documents he supplied, including a contract for payment of £500 a month, but that the couple required excessive hours, provided inadequate accommodation, confiscated her passport, confined her to the house, and paid her nothing until she escaped. These allegations were neither proved nor challenged; the courts proceeded on the assumption that they were true. Lord Sumption also assumed, although the point was disputed, that they amounted to trafficking in persons.
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In June 2011 Ms Reyes brought claims for race discrimination, unlawful deductions and failure to pay the national minimum wage. The couple also challenged service of the claim. The Supreme Court held that sending it by post did not infringe the inviolability of the diplomat or his home. It conveyed information without requiring entry.
Immunity while in post and after departure
The Vienna Convention, incorporated by the Diplomatic Privileges Act 1964, gives a serving diplomatic agent immunity from the civil jurisdiction of the receiving state, subject to limited exceptions. One exception, in article 31(1)(c), covers an action relating to any professional or commercial activity exercised by the agent in the receiving state outside his official functions. Once the agent’s functions have ended and he has left the country, article 39(2) provides that immunity ceases, except for acts performed in the exercise of his functions as a member of the mission.
Mr Al-Malki’s posting ended on 29 August 2014 and he left the United Kingdom. Lord Sumption, with whom Lord Neuberger agreed, held that the employment and alleged maltreatment of Ms Reyes were not acts performed in the exercise of Mr Al-Malki’s diplomatic functions. They were personal services, not done for or on behalf of Saudi Arabia. Activities that merely made his private life easier were not thereby official. Mrs Al-Malki’s immunity, being derivative, had also ended. Diplomatic immunity is procedural. Proceedings begun while immunity existed are not a nullity, and the court looks at the position at the time of the hearing. The loss of status therefore removed the immunity, just as a later waiver would have done.
The commercial activity exception
Because residual immunity did not apply, it was unnecessary to decide whether article 31(1)(c) would have excluded immunity had Mr Al-Malki still been in post. Lord Sumption nevertheless considered the point. In his view, employing a domestic servant for purely personal services is not the exercise of a professional or commercial activity. The words require the diplomat to practise a profession or carry on a business, not merely to obtain personal services. The drafting history of the Convention, article 42’s prohibition on practising for personal profit, and decisions of the United States federal courts supported that reading. On the assumed facts, human trafficking did not alter the characterisation: an employer who uses a trafficked person’s services in his home is not, without more, carrying on a commercial activity, and procedural immunity does not conflict with the international prohibition of trafficking.
Lord Wilson, with whom Lady Hale and Lord Clarke agreed, accepted the result on article 39(2) but doubted whether that construction of article 31(1)(c) was correct. He pointed to evidence of trafficking in diplomatic households, the international commitment to compensation for victims, and the more restrictive approach to state immunity in employment cases. He questioned whether the employer forms part of the trafficking chain and whether the meaning of the exception might accommodate later developments in international law. He suggested that the International Law Commission could consider an amendment to remove doubt. Lady Hale and Lord Clarke shared those doubts and regarded further development of the law as desirable, while agreeing that the point did not arise for decision.
Verdict: The Court unanimously allowed Ms Reyes’s appeal and dismissed the couple’s cross-appeal on service. It proposed a declaration that they lacked immunity and a return to the Employment Tribunal, subject to written submissions within 21 days. The allegations of mistreatment remained for the tribunal to decide.
