The UK’s highest court has ruled that diplomats who exploit domestic workers in conditions of modern slavery cannot rely on diplomatic immunity to prevent compensation claims.
Describing exploitation of migrant domestic workers by foreign diplomats as a “significant problem”, the supreme court ruled by a majority of three to two that exploitation of a domestic worker for profit falls within the “commercial activity” exemption to immunity under the diplomatic convention.
The case concerned Khalid Basfar, a London-based Saudi diplomat who allegedly treated a Filipino staff member as a slave, forcing her to wear a bell 24 hours a day to be at his “family’s beck and call”.
Josephine Wong alleges she was first employed by the diplomatic household of Basfar in November 2015 in Saudi Arabia, and in August 2016 she was brought to the UK to continue working for him.
The court heard that Wong alleged that after arriving in the UK she was confined at all times to Basfar’s house except to take out the rubbish.
The judgment states: “She was held virtually incommunicado, being allowed to speak to her family only twice a year using 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 doorbell 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 leftover food; if they were out, she could cook something for herself.”
The court was not asked to judge the veracity of these claims, but only the issue of whether Basfar’s treatment of Wong was protected by diplomatic immunity if it did amount to modern slavery.
The view of the court’s majority was that on the pleaded facts “Mr Basfar’s treatment of Ms Wong amounted to a form of modern slavery, whether it was forced labour, servitude or trafficking. This shows that the relationship between them was not that of employment freely entered into, so as to be an ordinary part of Mr Basfar’s daily life in the UK as a resident diplomat. And it shows that his conduct amounted to a commercial activity practised (in so far as it matters) for personal profit.”
While accepting Basfar’s argument that ordinary employment of a domestic worker by a diplomatic agent does not constitute the exercise of a commercial activity within the meaning of the exemption, the judgment said: “We cannot accept that exploiting a domestic worker by compelling her to work in circumstances of modern slavery is comparable to an ordinary employment relationship of a kind that is incidental to the daily life of a diplomat (and his family) in the receiving state.
“There is a material and qualitative difference between these activities. Employment is a voluntary relationship, freely entered into and governed by the terms of a contract.”
Nusrat Uddin, of Wilsons Solicitors, representing Wong, said:“This is a world-leading judgment as the UK is now the first country in the world to take this stance against such actions by [serving] diplomats.”
Uddin praised Wong’s bravery, saying: “She took her case to the highest court in the land and stood up for the rights of all domestic workers. We are extremely pleased with the judgment, which has far-reaching implications for victims of modern slavery and domestic servitude who are ill-treated by diplomats.”
Alison Harvey, the chair of the board of trustees of Kalayaan, an NGO that campaigns for the rights of domestic workers and intervened in the appeal, said the decision would “resonate internationally”.
The case has been before the courts since 2018. It will be for Wong to return to the employment tribunal to seek compensation for breaches of her employment rights, knowing the Saudi diplomat can no longer claim diplomatic immunity.
