Immunity vs the rights of domestic workers: the impact of two recent Supreme Court judgments

REYES v AL-MALKI [2017] UKSC 61 

BENKHARBOUCHE v SECRETARY OF STATE FOR FOREIGN AND COMMONWEALTH AFFAIRS

SECRETARY OF STATE FOR FOREIGN AND COMMONWEALTH AFFAIRS v JANAH [2017] UKSC 62

SUPREME COURT, 18 OCTOBER 2017

Facts

1. The (joined) Benkharbouche and Janah cases arose from claims by two Moroccan nationals who had been employed as domestic workers in the Sudanese and Libyan embassies in London. They were paid grossly under the national minimum wage, forced to work unlawful hours, unfairly dismissed and (in Ms. Janah’s case) discriminated against on racial grounds. They were dismissed from their employment and brought claims in the Employment Tribunal.
2. Sudan elected not to participate in the proceedings before the Court of Appeal and did not appeal to the Supreme Court. Ms Benkharbouche was represented in the Court of Appeal but did not appear in the Supreme Court. Libya participated in the proceedings in the Court of Appeal, but although it was granted permission to appeal to the Supreme Court, it was not permitted to pursue the appeal because it has failed to comply with an order for security for costs. Thus the effective participants in the Supreme Court were the Secretary of State, who appealed in both cases, and Ms Janah, who was represented by ATLEU. The Court received written and oral submissions on behalf of the AIRE centre, and written submissions on behalf of 4A Law Public Interest Lawyers Ltd.
3. In Reyes, a domestic worker who alleged that she was a victim of trafficking brought claims in the Employment Tribunal for direct and indirect discrimination, unlawful deductions from wages (failure to pay the national minimum wage), and breach of the Working Time Regulations, against a Saudi Arabian diplomatic agent and his wife. Mr and Mrs Al-Malki left the United Kingdom when Mr Al-Malki’s posting came to an end. Although the factual disputes were not resolved, it was presumed, for the purposes of the judgement, that she had been trafficked, that she had suffered racial discrimination and harassment, and that she had not been paid the national living wage.
4. In Reyes the couple claimed diplomatic immunity, and in Benkharbouche and Janah the embassies relied upon state immunity. As noted by the Supreme Court in Reyes, diplomatic immunity is an aspect of state immunity (Propend Finance Pty Ltd v Sing (1997) 111 ILR 611). That is key to the link between the two cases, and their joint relevance to the development of the law relevant to redress for abuse and mistreatment even when it occurs in the context of overseas employment by a State or its functionaries.
5. The Supreme Court’s approach to immunity in both cases shows that it is prepared to steer a path to accountability in this context. As Lord Wilson noted in his judgment in Reyes (at 59), “the UK confronts a significant problem in relation to the exploitation of migrant domestic workers by foreign diplomats”. The nature and extent of that problem is apparent from the evidence provided by Kalayaan, the Intervener in Reyes, which was cited in the judgment as follows (at 59):
   

   1. Between about 200 and 250 domestic workers enter the UK each year under a diplomatic overseas domestic worker's visa.
   2. The proportion of domestic workers who are the victims of trafficking is considerably higher in diplomatic households than in other households.
   3. Thus in one representative period 17 out of 55 referrals to the government agency set up to identify the trafficking of domestic workers related to diplomatic households whereas, had such referrals been in proportion to the number of workers in other households, there would have just been one.
   4. The explanation for the high ratio of trafficked workers in diplomatic households is largely because perceived immunity from claims for compensation leads diplomats to consider that they can exploit them with impunity.
   5. The perceived immunity makes trafficking with a view to domestic servitude a low risk, high reward activity for diplomats.

Immunity: The legal framework

6. The general immunity from jurisdiction that applies to States themselves is rooted in public international law, but is formalised in domestic law by section 1 of the State Immunity Act 1978. That general immunity is then subject to a number of exceptions, and – confusingly – those exceptions are themselves subject to exceptions. Section 4(1) provides that a State’s immunity does not apply in respect of “proceedings relating to a contract of employment between the State and an individual where the contract was made in the United Kingdom or the work is to be wholly or partly performed there”. There are, however, two exceptions to the exception that apply to the facts of Benkharbouche and Janah:
   

   a. Where, “at the time when the contract was made the individual was neither a national of the United Kingdom nor habitually resident there” (section 4(2)(b)); and

   b. Where the proceedings concern “the employment of the members of a mission within the meaning of the Convention scheduled to the said Act of 1964 or of the members of a consular post within the meaning of the Convention scheduled to the said Act of 1968” (section 16(1)(a)).

7. In Reyes, the form of immunity at issue was not sovereign immunity itself, but rather the notion of diplomatic immunity, rooted in Article 31 of the Vienna Convention on Diplomatic Relations. Article 31(1) states, so far as relevant to the Reyes case, as follows:
   

   1. 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:

      […]

      (c) An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.

The decisions subject to appeal

8. In Benkharbouche and Janah, the Employment Tribunal dismissed all the claims on the basis that they were barred by sections 4(2)(b) and s.16(1)(a) of the State Immunity Act. The EAT upheld the dismissal of the domestic law claims but allowed the EU law claims to proceed. The Court of Appeal affirmed the EAT’s judgment, disapplying s.4(2)(b) and s.16(1)(a) so far as they applied to the EU law claims and declaring them to be incompatible with the right to access a court guaranteed by Article 6 of the ECHR.
9. In Reyes, the Court of Appeal had held that the diplomat was entitled to immunity under Article 31 of the Vienna Convention on Diplomatic Relations 1961 and that his wife was entitled to a derivative immunity under Article 37(1) as a family member. It held that the exception to immunity under Article 31(1)(c), where proceedings related to “any professional or commercial activity exercised by the diplomatic agent […] outside his official functions”, therefore, did not apply.

The Supreme Court

10. As noted above, diplomatic immunity is an aspect of state immunity. For this reason, the decision in Reyes was largely a product of the decision in Benkharbouche and Janah.
11. The general immunity from jurisdiction that applies to States themselves is rooted in public international law, but is formalised in domestic law by section 1 of the State Immunity Act 1978. That general immunity is then subject to a number of exceptions, and – confusingly – those exceptions are themselves subject to exceptions. Section 4(1) provides that a State’s immunity does not apply in respect of “proceedings relating to a contract of employment between the State and an individual where the contract was made in the United Kingdom or the work is to be wholly or partly performed there”. There are, however, two exceptions to the exception that apply to the facts of Benkharbouche and Janah:
    

    a. Where, “at the time when the contract was made the individual was neither a national of the United Kingdom nor habitually resident there” (section 4(2)(b)); and

    b. Where the proceedings concern “the employment of the members of a mission within the meaning of the Convention scheduled to the said Act of 1964 or of the members of a consular post within the meaning of the Convention scheduled to the said Act of 1968” (section 16(1)(a)).

12. The issue before the Supreme Court in Benkharbouche and Janah was whether these provisions were consistent with the European Convention on Human Rights and customary international law. Both Ms. Janah and Ms. Benkharbouche were recruited overseas but only Ms. Benkharbouche had acquired permanent resident status in the UK.
13. The consistent position of the ECtHR is that sovereign immunity does not prevent Article 6 from being engaged, but that it is not breached unless, in the circumstances, upholding immunity would lack a basis in customary international law. That being so, the ECHR issue depended entirely upon the customary international law issue. An important factor, therefore, was the standard of review applicable to the lower courts’ interpretation of international law. The Supreme Court made it plain that it was simply not enough that the interpretation of international law was “tenable” – it had to be viewed as correct by the Supreme Court.
14. The Supreme Court also made it clear that State immunity is not absolute (even if it had once been viewed as such). The question was whether the acts to which the claim related were done in the exercise of sovereign authority. Lord Sumption noted as follows:
    

    54 In the great majority of cases arising from contract, including employment cases, the categorisation will depend on the nature of the relationship between the parties to which the contract gives rise. This will in turn depend on the functions which the employee is employed to perform.

15. Lord Sumption noted that there were three categories of staff of a diplomatic mission (diplomatic agents, administrative and technical staff, and staff in the domestic service of the mission). As to the domestic staff who had brought this claim, he found that
    

    The employment of such staff is not inherently governmental. It is an act of a private law character such as anyone with the necessary resources might do
    

16. It should be emphasised that Lord Sumption said (at 57) that the judgment did not show that “the character of the employment is always and necessarily decisive”.
17. Turning, then, to Reyes, the form of immunity at issue was not sovereign immunity itself, but rather the notion of diplomatic immunity, as set out at [5] above. The core of the decision was made on the uncontroversial basis that Article 31 no longer applies in respect of a diplomat who is no longer in post, so the only immunity claim available to the diplomat was the narrower form of “residual immunity” under Article 39. That residual immunity applies only to acts performed the exercise of “official functions”. Acts performed in the exercise of a diplomat’s official functions are limited to acts which are part of the diplomatic functions of the diplomatic mission, performed on behalf of the state which that diplomat represents. The Supreme Court held that the employment of Ms Reyes to carry out domestic tasks (cleaning, kitchen help, looking after children) 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 (at 48). The Court of Appeal had been wrong to find that it was, because “that could be said of almost anything that made the personal life of a diplomatic agent easier”.

Comment

18. These two decisions demonstrate that the Supreme Court, reflecting a general public interest in protecting domestic workers (whether victims of trafficking or not), from alleged mistreatment, discrimination and other forms of exploitation, is not prepared to let the doctrine of State immunity be used as a barrier to accountability. The doctrine itself reflects the dual public interest in both allowing the operation of effective diplomatic functions as well as preventing one State judging the actions of another State.
19. However the judgments explode the myth of absolute immunity, as well as the notion that domestic servitude (or indeed domestic labour in any form) is an inherent part of the diplomatic function. This, it is suggested, reflects a broader tendency for the courts to look more carefully at arguments purportedly clothed in the language of public, or state, interests, to see whether they really do provide a sufficient reason to deny accountability for mistreatment of domestic workers. In Hounga v Allen [2014] UKSC 47, the Supreme Court noted that the UK authorities were striving in various ways to combat trafficking and to protect its victims. It found that it would be an affront to current anti-trafficking public policy to allow an employer to evade liability to an employee by reference to the illegality of the contract of employment entered into between them, where the employer had trafficked the employee for domestic servitude. In that case the Supreme Court said that the public policy in support of the application of the defence of illegality, to the extent that it exists at all, should give way to the public policy to which its application is an affront.
20. All three judgments send a strong message to those who presume that they can exploit vulnerable migrant workers with impunity (cf Kalayaan’s evidence at [5] above in the context of diplomatic households).