Mr A Buchan, of Counsel For the v Respondent — 2021

This was an open preliminary hearing on 4 June 2021, heard by CVP before Employment Judge Nicolle, dealing with the respondent's application to strike out the claimant's complaints of unfair constructive dismissal, unlawful deduction from wages, and Working Time Regulations 1998 rest-break claims on the ground of diplomatic immunity. The tribunal recorded that the claimant's separate time-limit point, which had originally been raised, was later discontinued and did not need to be considered.

The tribunal proceeded on the claimant's pleaded case at its highest and did not make any finding as to whether the facts alleged amounted to modern slavery. It considered whether the respondent's employment of the claimant as a domestic servant, on the assumed facts, was a commercial activity exercised outside his official diplomatic functions for the purposes of Article 31(1)(c) of the Vienna Convention on Diplomatic Relations. In doing so it referred to Article 39(2), Reyes v Al-Malki and Basfar v Wong, and said the assumed facts were, in all material respects, substantially similar to Basfar.

The tribunal concluded that a claim by a domestic servant against a foreign diplomat in assumed conditions of human trafficking and modern slavery constituted commercial activity exercised outside official functions within Article 31(1)(c). It also applied the strike-out approach in Hughes v Colin Richards & Co and held that the respondent had not shown the claims were bound to fail. The result was that the respondent did not have diplomatic immunity in relation to these proceedings and the case was not struck out. A further preliminary hearing was to be listed for directions.