Although foreign diplomats in the UK enjoy diplomatic immunity from a range of potential claims, the Supreme Court has held in Reyes v Al-Malki and anor that a Saudi diplomat and his wife could not claim immunity from employment law claims brought by a former domestic servant as they did not relate to his “official functions”.
Basic facts
Ms Reyes worked as a domestic servant for Mr and Mrs Al-Malki at their London home between January and March 2011, when Mr Al-Malki was a member of the diplomatic staff in the Saudi Arabian embassy in London.
In June 2011, Ms Reyes lodged a tribunal claim alleging direct and indirect race discrimination, unlawful deduction from wages and failure to pay her the national minimum wage. She also alleged that she was a victim of trafficking and that her employers had mistreated her during her employment with them.
Decision of Court of Appeal
The Court of Appeal held that the tribunal could not hear her claim because Mr Al-Malki was entitled to diplomatic immunity under article 31 of the Vienna Convention on Diplomatic Relations 1961. Mrs Al-Malki also benefited from immunity under article 37(1) of the Convention as a member of his family. Mr and Mrs Al-Malki left the UK in August 2014 when his posting came to an end.
Ms Reyes appealed against that decision on the basis that the tribunal had jurisdiction to hear her claim under the exception to the general rule to diplomatic immunity contained in article 31(1)(c) of the Convention. Mr and Mrs Al-Malki cross-appealed, arguing that they were never validly served with the claim form.
Relevant law
Article 31(1)(c) states that immunity does not apply to “an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his [sic] official functions”.
Decision of Supreme Court
Dealing firstly with the cross-appeal, the court held that, as the claim form had been successfully delivered by post, this did not violate any diplomatic privileges. Instead it was simply a way of giving notice to Mr Malki that proceedings had been brought against him.
The Supreme Court then drew attention to the distinction in the Convention between the acts of a diplomat which are performed in the exercise of an “official function” and those which are not. The former are immune because they are committed on behalf of a state; while the latter can be justified on the pragmatic basis that it facilitates diplomatic relations. However, there are exceptions. For instance, when a diplomat’s posting has come to an end and they leave the relevant state, their immunity is limited to a “residual immunity” which only applies to acts relating to “official functions”.
As Mr and Mrs Al-Malki left the UK in August 2014, the only immunity they enjoyed at that point was in respect of official acts. As employing Ms Reyes to work in their home could not be said to relate to the official function of a diplomat, they could not therefore rely on residual immunity. It was irrelevant that Mr Al-Malki was a serving diplomat when Ms Reyes originally lodged her claim. The Supreme Court allowed the appeal and remitted the case to the tribunal.
A majority of the Court also expressed the view (although this was not part of the official judgment) that the employment of a domestic servant falls within the exception in article 31(1)c, implying that Mr Al-Malki might not have enjoyed immunity, had he remained in his post.