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A diplomatic agent and his wife are posted to London. They subsequently employ a foreign domestic worker to look after their children. The domestic worker is also required to cook and clean for the family.

During the course of the domestic worker’s employment, the diplomatic agent and his wife allegedly discriminate against her on the basis of her race, fail to pay her the national minimum wage and makes unlawful deductions from her wages. Her employment ends when she escapes from her employers. 

The diplomatic agent leaves the UK when his posting comes to an end.

The domestic worker brings a claim against her former employers in the Employment Tribunal. A diplomatic agent is ordinarily entitled to immunity from suit under the Vienna Convention on Diplomatic Relations 1961 (“the Convention”), art 31. A family member is entitled to a derivative immunity under art 37(1) of the Convention. Can the domestic worker sue her former employers relying upon the exception to immunity afforded by art 31(1)(c) of the Convention; namely, where the proceedings arise out of “any professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official functions”?

On the facts in Reyes v Al-Malki & Anor, the Supreme Court held that the domestic worker could sue, albeit on a different and much narrower ground. Art 31 of the Convention only conferred immunity on a diplomatic agent whilst he is in post. When a diplomatic agent left his posting and the receiving state, he was only entitled to immunity under art 39(2) of the Convention for acts performed whilst he was in post in the exercise of his diplomatic functions. The personal services Ms Reyes carried out for Mr and Mrs Al-Malki did not form part of Mr Al-Malki’s official functions as a diplomatic agent. Accordingly, the immunity afforded by art 39(2) of the Convention did not apply.

In light of its findings, the Supreme Court did not give a binding decision on whether the employment of a domestic worker to provide purely personal services amounted to a “commercial activity” under art 31(1)(c) of the Convention.  The issue, however, divided the court.

This article was originally posted here.