Reyes v Al-Malki and Another [2017] UKSC 61

On 18 October 2017, the Supreme Court unanimously ruled that a former Saudi diplomat and his wife do not enjoy immunity from claims brought against them by their former domestic worker, Ms Reyes.

Ms Reyes, a Philippine national, had been employed by Mr and Mrs Al-Malki as a domestic servant in their residence in London for approximately three months in the early part of 2011. She performed domestic and child minding duties. Ms Reyes began proceedings against the Al-Malki’s in June 2011 before an English Employment Tribunal alleging direct and indirect race discrimination, unlawful deduction from wages and failure to pay her the national minimum wage. At the time, Mr Al-Malki was a member of the diplomatic staff of the embassy of Saudi Arabia in London. The English Court of Appeal had earlier held that the Employment Tribunal had no jurisdiction since Mr Al-Malki enjoyed diplomatic immunity under Article 31 of the 1961 Vienna Convention on Diplomatic Relations (“1961 Vienna Convention”), and Mrs Al-Malki enjoyed a derivative immunity under Article 37(1) as a member of his family. The Supreme Court overturned this decision and held that the Al-Malki’s did not enjoy immunity from the Employment Tribunal and thus the claims by Ms Reyes should be allowed to proceed.

The Supreme Court focused on Mr Al-Malki’s immunity at the time the case was being heard rather than the time at which the claim was commenced, since diplomatic immunity is a “procedural immunity” and procedural incidents of litigation are determined by a Court at the time of hearing.

Critically, the Supreme Court held that diplomatic immunity for former diplomats extends only to acts done in the course of their “official functions”. The Court found that Mr Al-Malki and his wife did not enjoy direct or derivative diplomatic immunity since the employment of Ms Reyes in their residence and her alleged mistreatment were not acts performed by Mr Al-Malki in the exercise of his official diplomatic functions, despite the argument being made that the employment of Ms Reyes had assisted Mr Al-Malki in the performance of his official functions.

A three to two majority of the Supreme Court also indicated that had it been necessary they would likely have held the employment of a domestic servant such as Ms Reyes – brought to the UK to work in assumed conditions of modern slavey – falls within the “commercial activity” exception to immunity under Article 31(1)(c) of the 1961 Vienna Convention, and on this basis the Al-Malki’s would not have enjoyed immunity. However, as the Court had already dismissed Mr and Mrs Al-Malki’s immunity on another basis, this was not formally determined.

Finally, the Court unanimously rejected the claim that Mr and Mrs Al-Malki had not been validly served since this had been effected by post at their private residence.  The Court ruled that serving a claim form by post does not involve any trespass against the diplomat’s person or residence and thus respects their inviolability.