Supreme Court explores ‘modern slavery’ in diplomatic immunity case

Out-Law News | 21 Jul 2022 | 8:53 am | 7 min. read

A new ruling by the UK Supreme Court can help businesses understand what the term ‘modern slavery’ means, an expert has said.

The Supreme Court explored the term, and practices such as forced labour and human trafficking which are covered by that phrase, in a recent case concerning rights to diplomatic immunity.

Neil Carslaw of Pinsent Masons was commenting after the Supreme Court ruled that a Saudi diplomat cannot rely on diplomatic immunity to defeat claims brought before an employment tribunal in the UK against him.

Carslaw said: “Modern slavery is an umbrella term and the Modern Slavery Act 2015 and this judgment provides a useful insight of interpretations and definitions of key terms – slavery; forced labour; servitude and human trafficking – and explores how each concept is defined in international law.”

Background to the case – diplomatic immunity

The case before the UK Supreme Court concerned an ongoing dispute between Philippines national Josephine Wong and Saudi diplomat Khalid Basfar. Wong was previously employed in Basfar’s diplomatic household in Saudi Arabia and was brought to the UK in August 2016 to work in a similar capacity.

Wong’s employment by Basfar ended on 24 May 2018. Thereafter she brought a claim in the employment tribunal in respect of unlawful deductions of wages and failure to comply with the law relating to working time and the national minimum wage, which arose from the alleged exploitative conduct. Basfar did not admit the facts alleged and also argued that, even if the facts alleged were proved, the claim could not succeed as a result of diplomatic immunity afforded to him against Wong’s claims.

The principle of legal immunity for diplomatic agents is derived from the Vienna Convention on Diplomatic Relations 1961 and incorporated into UK law through the Diplomatic Privileges Act 1964. The law provides, among other things, that a diplomatic agent enjoys immunity from the criminal jurisdiction and, with limited exceptions, the civil and administrative jurisdiction of the receiving state.

In this case, the question of whether Basfar benefits from diplomatic immunity against Wong’s claims had to be settled to determine whether Wong’s claims for wages and breaches of employment rights can be heard.

An employment tribunal initially sided with Wong, who has argued that her circumstances fell within the so-called ‘commercial activity’ exception to diplomatic immunity under the Vienna Convention.  The exception provides that diplomatic 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 official functions”. Wong has alleged that she was trafficked from Saudi Arabia to the UK and claimed that human trafficking is a commercial activity.

However, Basfar succeeded in overturning the tribunal’s decision on appeal before the employment appeals tribunal. Basfar’s case has been that the employment of a domestic servant at a diplomat’s private residence does not constitute the exercise of a commercial activity by a diplomatic agent within the meaning of the exception. He has further argued that this position does not change if the domestic servant is a victim of human trafficking, and so even if Wong is considered to have been trafficked, he has diplomatic immunity in relation to her claim.

The Supreme Court did not make a finding in relation to the substance of Wong’s claims against Basfar. The appeal concerned the question of whether the ‘commercial activity’ exception to diplomatic immunity applies to this case. The court sided with Wong, meaning the substance of her claims will now be considered before an employment tribunal.

Modern slavery as an umbrella term

The analysis of what is meant by the umbrella term ‘modern slavery’ arose in this case as a result of Basfar’s argument that the employment tribunal did not have jurisdiction to hear a case relating to trafficking.

Employment law expert Emma Johnston of Pinsent Masons said: “The Supreme Court rejected the argument advanced by Basfar that effectively Wong’s claims concern an action for trafficking, which is not within the tribunal’s jurisdiction. The Supreme Court observed that the same point could be made about claims for compensation for subjection to servitude or forced labour which equally are not claims that a tribunal has jurisdiction to determine. However, the court found that that is not the argument Wong is making.”

“Wong is not asking the tribunal to compensate her for breaches of her human rights arising from being trafficked or held in servitude. These points have only arisen as a result of Basfar’s claim for diplomatic immunity. Her claim concerns unlawful deductions from wages and failure to comply with both the Working Time and the National Minimum Wage Regulations which fall within the tribunal’s jurisdiction now that it is clear that the allegations of exploitation of a domestic worker for profit in this case is considered a ‘commercial activity’ and therefore not covered by diplomatic immunity,” Johnston said.

Carslaw added: “In the judgment, the Supreme Court considered the grouping of concepts such as slavery, servitude, forced labour together with human trafficking under the description of ‘modern slavery’.

The discussion in the judgment included the following:

Modern slavery 

The court cited Anti-Slavery International’s description of modern slavery: “Today slavery is less about people literally owning other people - although that still exists - but more about being exploited and completely controlled by someone else, without being able to leave.”

Slavery 

On the term slavery, a 2002 report commissioned by the United Nations was cited: “In the modern context, the circumstances of the enslaved person are crucial to identifying what practices constitute slavery, including: (i) the degree of restriction of the individual’s inherent right to freedom of movement; (ii) the degree of control of the individual’s personal belongings; and (iii) the existence of informed consent and a full understanding of the nature of the relationship between the parties.”

Forced labour 

Forced labour was described by reference to the International Labour Organisations 1930 Convention Concerning Forced or Compulsory Labour (no. 29) which has been ratified by 179 states. Article 2(1) of this convention defines “forced or compulsory labour” as “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily”.

Also referenced was related guidance, which states: “Indicators that the work is not being performed voluntarily include physical confinement in the work location, deception or false promises about types and terms of work, retention of identity documents and withholding and non-payment of wages.”

Servitude 

In respect of servitude, the United Nations 2000 Palermo Protocol was referred to in the judgment as follows: “the condition of a person who is unlawfully compelled or coerced by another to render any service to the same person or to others and who has no reasonable alternative but to perform the service, and shall include domestic servitude and debt bondage.”

Human trafficking  Human trafficking, which is defined by section 2 of the Modern Slavery Act 2015, was described by reference to the Palermo Protocol amongst other sources: “the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.”

Carslaw said: “The consequences of failing to effectively manage modern slavery risk and be conscious of obligations under the Modern Slavery Act 2015 can be significant from a regulatory and reputational perspective. Whilst the discussion on key concepts in this judgment is involved and detailed, it is useful to step back and consider what modern slavery actually means in order to make efforts to identify and eradicate it from supply chains.”

In the UK, the Modern Slavery Act 2015 requires businesses with an annual turnover of £36 million or more to publish an annual slavery and human trafficking statement – otherwise known as a modern slavery statement. This statement must outline the steps taken by the company during that financial year to ensure that slavery and human trafficking did not take place in its business or supply chains.