Appellant/Cross- Respondents/Cross-Appellants
Respondent

Timothy Otty QC Sir Daniel Bethlehem KCMG QC

Paul Luckhurst Sudhanshu Swaroop QC

(Instructed by ATLEU) (Instructed by Reynolds Porter

Chamberlain LLP)

Intervener (Kalayaan)

(Written submissions only)

Richard Hermer QC

Tom Hickman
Flora Robertson
Philippa Webb

(Instructed by Deighton

Pierce Glynn)

Intervener (Secretary of

State for Foreign and

Commonwealth Affairs)

(Written submissions only)

Ben Jaffey QC
Jessica Wells
(Instructed by The Government Legal
Department)

LORD SUMPTION: (with whom Lord Neuberger agrees)
Introduction
1. Ms Reyes, a Philippine national, was employed by Mr and Mrs Al-Malki as a domestic servant in their residence in London between 19 January and 14 March 2011. Her duties were to clean, to help in the kitchen at mealtimes and to look after the children. At the time, Mr Al-Malki was a member of the diplomatic staff of the embassy of Saudi Arabia in London. Ms Reyes alleges that she entered the United Kingdom on a Tier 5 visa which she obtained at the British embassy in Manila by producing documents supplied by Mr Al-Malki, including a contract showing that she would be paid £500 per month. She alleges that during her employment the Al- Malkis maltreated her by requiring her to work excessive hours, failing to give her proper accommodation, confiscating her passport and preventing her from leaving the house or communicating with others; and that they paid her nothing until after her employment terminated upon her escape on 14 March. The proceedings have been conducted to date on the assumption, which has been neither proved nor challenged, that these allegations are true. I shall also make that assumption. In addition, I shall assume that these allegations amount to trafficking in persons within the meaning of the International Protocol to Prevent, Supress and Punish Trafficking in Persons, Especially Women and Children (Palermo, 2000), although that is very much in dispute.
2. In June 2011, Ms Reyes began the present proceedings in the Employment Tribunal alleging direct and indirect race discrimination, unlawful deduction from wages and failure to pay her the national minimum wage. The Court of Appeal has held that the Employment Tribunal has no jurisdiction because Mr Al-Malki was entitled to diplomatic immunity under article 31 of the Vienna Convention on Diplomatic Relations, and Mrs Al-Malki was entitled to a derivative immunity under article 37(1) as a member of his family.
3. The main issues on the appeal concern the effect of article 31(1)(c) of the Convention, which contains an exception to the immunity of a diplomat from civil
jurisdiction where the proceedings relate to “any professional or commercial activity
exercised by the diplomatic agent in the receiving state outside his official
functions.” This raises, among other issues, the question how, if at all, that exception

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Reyes v Al-Malki

Details

AGLC: Reyes v Al-Malki [2017] UKSC 61
Case: [2017] UKSC 61
Decision Date

CaseChat Overview and Summary

Reyes v Al-Malki was an appeal against a decision of the Court of Appeal which held that the Employment Tribunal lacked jurisdiction to hear claims brought by a former domestic worker against the Al-Malkis, a diplomat and his wife, on the basis that they were entitled to diplomatic immunity. The Supreme Court allowed the appeal, holding that the Al-Malkis were no longer entitled to diplomatic immunity as Mr Al-Malki had ceased to be a member of the Saudi mission in London. The Supreme Court also held that the employment and maltreatment of Ms Reyes by the Al-Malkis did not amount to a commercial activity for the purposes of article 31(1)(c) of the Vienna Convention on Diplomatic Relations, even if the employment was part of a human trafficking scheme. The Court remitted the case to the Employment Tribunal to determine the merits of the claims on the basis of the facts assumed to be true. Lord Wilson expressed doubts about the Court's conclusion that the employment of Ms Reyes was not a commercial activity, suggesting that it may be more appropriate for the International Law Commission to consider an amendment to the Vienna Convention to clarify the position.

Orders