In Reyes v Al-Malki and another, Mr Al-Malki was a Saudi Diplomat, based in London with his wife. They employed Ms Reyes on 19 January 2011 as a domestic worker on a salary of £500 per month. Reyes was a Philippine national.
Reyes left the London residence on 14 March 2011, and alleged that she had been mistreated by Mr and Mrs Al-Malki during the course of her employment and that she was a victim of trafficking. Her allegations included that her passport was confiscated, she was made to work excessive hours, she was not provided with proper accommodation and she was prevented from leaving the house or communicating with others.
In August 2014, Mr Al-Malki’s mission ended and he returned to Saudi Arabia with his wife.
Reyes brought a claim in the employment tribunal against Mr and Mrs Al-Malki for failure to pay the national minimum wage, race discrimination and unlawful deduction from wages. The respondents argued that they were protected by diplomatic immunity under the 1961 Vienna Convention on Diplomatic Relations, Mr Al-Malki as a diplomat and his wife as a family member.
Following numerous appeals regarding the issue of whether the employment tribunal had jurisdiction to hear the claim and whether diplomatic immunity was applicable, Reyes appealed to the Supreme Court, arguing that the employment tribunal does have jurisdiction to hear her claims as they fall under the exception in Article 31 (1) (c) of the Vienna Convention – namely that the diplomat will not enjoy immunity in relation to any professional or commercial activity exercised by the diplomat outside of his official functions.
Article 31 (1) states: ‘A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving state. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:
- An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state outside of his official functions.’
Article 31 affords diplomats the protection as detailed above, but Article 39 of the Vienna Convention withdraws this immunity at the point that the diplomat leaves the country, except in relation to any acts performed ‘in the exercise of his functions as a member of the mission’.
Supreme Court ruling
The Supreme Court unanimously allowed the appeal, stating that “the employment of Ms Reyes to carry out domestic tasks in the residence of Mr and Mrs Al-Malki was not an act in the exercise of the diplomatic functions of the mission. Nor was it done on behalf of Saudi Arabia, even though it assisted Mr Al-Malki in the performance of his official functions. It was not the exercise of an official function.”
Once a diplomat’s mission has come to an end, they are no longer protected by diplomatic immunity, except in relation to official acts performed during the mission. For the reasons stated above, the court found that the employment of Reyes was not an official act and therefore Mr and Mrs Al-Malki could not enjoy diplomatic immunity.
The recent similar judgment from the Supreme Court in Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs suggests that the courts’ interpretation of immunity laws in relation to employment matters is shifting, and those individuals that previously may have been afforded protection from any employment tribunal claims brought against them through legislation based on state or diplomatic immunity may not be protected after all.
Claire Brook is an employment law partner at Aaron & Partners