Employment Cases Update

Basfar v Wong UKEAT/0223/19/BA

Date published: 07/02/2020

Appeal against the ET’s decision rejecting the Respondent’s application that the Claimant’s claims should be struck out on the ground of diplomatic immunity. Appeal allowed.

The Claimant was employed to work in the official diplomatic residence of the Respondent, who was a serving diplomat in the UK. The Claimant alleged that her employment and treatment bore no relation to her statement of terms and conditions, and amounted to circumstances of modern slavery; she brought a number of claims in the ET including wrongful (constructive) dismissal, failure to pay the national minimum wage, and claims under the Working Time Regulations 1998. The Respondent raised the defence of diplomatic immunity, claiming that the ET was bound by the decision of the Court of Appeal in Reyes v Al-Malki to conclude that his employment of the Claimant did not constitute "commercial activity", but the ET rejected that defence, holding that the decision of the Court of Appeal was not binding, and that the observations of the majority in the Supreme Court (which decided the appeal on different grounds) were to be preferred. The Respondent appealed.

The EAT held that, as far as precedent was concerned, the ET had correctly concluded that it was not bound by the Court of Appeal in Reyes v Al-Malki. However, on the question of whether the ET was right to prefer the observations of the majority in the Supreme Court, it held that the decisions of the Court of Appeal and of the minority in the Supreme Court represented the current state of the law on the issue of "commercial activity"; accordingly, it allowed the appeal on this ground and held that the defence of diplomatic immunity succeeded.

Read the full text of the judgment on BAILII or download the file by clicking the link below.