J Alicante v A A Ahmad E M H Alfailakawi: 2207015/2020
EMPLOYMENT TRIBUNALS
Case No 2207015/2020
Between
J AlicanteClaimantA A Ahmad E M H AlfailakawiRespondent
Before
Employment Judge NicolleDate 26 July 2024
JUDGMENT
[1]The Judgment of the Tribunal is that The Claimant’s claim is not struck out on the ground of diplomatic immunity. The Respondent is not immune from the civil jurisdiction of the Courts and Tribunals of the United Kingdom by virtue of Article 31(1) of the 1961 Vienna Convention on Diplomatic Relations (“the Convention”), as enacted into English Law by S2(1) Diplomatic Privileges Act 1964.
REASONS
[2]The Claimant brings complaints of unfair constructive dismissal, unlawful deduction from wages and breach of the Working Time Regulations 1998 with respect to rest breaks.[3]This preliminary hearing was listed to determine the Respondent’s application to strike out all the Claimant’s claims on the grounds of diplomatic immunity.[4]The Respondent contends that he is immune from civil jurisdiction of the Courts and Tribunals of the United Kingdom by virtue of Article 31(1) of the Convention, as enacted into English Law by S2(1) Diplomatic Privileges Act 1964. Procedural History[5]The Open Preliminary Hearing took place using the cloud video platform (CVP) under Rule 46. The parties agreed to the hearing being conducted in this way.[6]In accordance with Rule 46, the Tribunal ensured that members of the public could attend and observe the hearing. This was done via a notice published on Court Serve.Net. No members of the public attended the hearing.[7]The parties were able to hear what the Tribunal heard.[8]The participants were told that it is an offence to record the proceedings.[9]From a technical perspective, there were no difficulties.[10]No live witness evidence was given at the hearing.[11]Counsel produced skeleton arguments. There was also a short witness Statement from the Respondent.[12]At the hearing it was apparent that a referral in a similar case had been made to the Supreme Court in Basfar v Wong in respect of which the Employment Appeal Tribunal [2020] ICR 1185 had allowed Mr. Basfar’s appeal against the first instance Employment Tribunal’s decision but then issued a certificate that the case was suitable for an appeal by Ms Wong directly to the Supreme Court “leapfrogging” the Court of Appeal.[13]Given this I decided that it would be inappropriate for the provisionally listed full merits hearing from 12-17 August 2021 to remain. Further, in an email to the parties subsequent to the Open Preliminary Hearing on 4 June 2021 I advised them that the balance of advantage was in my deferring my decision pending the Supreme Court’s judgment.[14]The judgment of the Supreme Court was given on 6 July 2022 following a hearing on 13-14 October 2021. However, there has been a further delay in my promulgating this judgment given that I was on long term sick leave during 2022 and have only recently returned to active judicial duties. The Facts[15]For the purposes of this preliminary hearing only the Claimant’s pleaded case should be taken at its highest.[16]Between 12 September 2016 and 25 January 2019, the Claimant lived with and worked for the Respondent and his family in their private residence in Kuwait.[17]The terms and conditions of the Claimant’s employment were set out in a document dated 14 August 2018 (the Contract). This gave the address of the Respondent, the Claimant’s employer as 2 Albert Gate, London SW1X 7JU (the Premises). At clause 4 her job title was Stated to be domestic worker undertaking housekeeping duties. The Contract Stated that the Respondent’s wife also resided at the Premises.[18]The Contract provided for a wage of £7.50 per hour and 30 days’ holiday entitlement per year. It is Stated to be governed by the law of England and Wales.[19]The Claimant says that she escaped from the Respondent with the assistance of a UK charity that supports migrant workers on 25 June 2020.[20]The Respondent says that the Claimant was free to come and leave as she wanted. Jurisdiction – Time limit[21]The Respondent had originally contended that the Tribunal did not have jurisdiction because the claim was lodged out of time. However, this claim was subsequently discontinued and need not be considered. The Parties’ Arguments[22]The parties agreed that the question for the Tribunal was whether the Respondent’s employment of the Claimant as a domestic servant (in assumed circumstances of modern slavery for the purposes of determining this application, but without making any finding as to whether the factual circumstances as claimed by the Claimant constituted modern slavery, was a commercial activity exercised by the Respondent outside of his official function. The Respondent’s Diplomatic Status[23]Further to the hearing on 4 June 2021 the Respondent was ordered to produce a further witness Statement confirming his diplomatic status. He Stated that at the time of the Claimant’s claim and on the date when she says she was unfairly dismissed by him he was working as an Attaché with diplomatic status for the State of Kuwait posted in the Embassy of Kuwait in London. He said that as of 4 June 2021 and ongoing he was working as an Attaché with diplomatic status for the State of Kuwait posted in the Embassy of Kuwait in London.[24]The Claimant says that the original witness Statement of the Respondent dated 6 April 2021 was not accompanied by a Statement of truth. Mr Buchan argues that there is uncertainty as to whether the Respondent was still employed as a diplomat by the Kuwait Government. He says that there was a failure to provide contemporaneous documentary proof. He says that this is relevant given that the Respondent relies on Reyes v Al-Malki and another [2017] UK SC6 which held that a diplomat cannot rely upon immunity, in cases such as this, where there diplomatic status ends. The Respondent’s Argument[25]That members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the receiving State, enjoy the privileges and immunities specified in Articles 29 to 36 of the Convention.[26]The highest degree of protection is conferred on diplomatic agents.[27]If the relevant acts were within the scope of the diplomat’s official functions, the enquiry ends there. He is immune. Diplomatic immunity is a procedural immunity.[29]In accordance with the analysis in Reyes (Supra) the Respondent would be immune from the proceedings unless the exception under Article 31(1)(c) applies.[30]The property in which the Respondent and his family lived, and where the Claimant was employed and lived, is owned by the State of Kuwait not by the Respondent.[31]There was an overlap between work that the Claimant did for the Respondent at the Premises and that which related to the Respondent’s capacity as a diplomat in that she attended and helped at diplomatic functions, went to the Kuwait Embassy with the Respondent and his family, and received transportation from staff employed by the Embassy.[32]My Day accepted that the burden of proof was on the Respondent that he fell within diplomatic immunity but that the burden of proof was on the Claimant that the potential exemption applied. The Claimant’s Argument[33]That an application to strike out should not be granted unless the Tribunal is certain that the claim is bound to fail: Hughes v Colin Richards & Co [2004] EWCA Civ 266. In accordance with the Supreme Court’s judgment in Reyes official functions could not have extended to the employment of domestic staff to do the cleaning, help in the kitchen, and look after children.[34]The allegations of the Claimant amounting to trafficking had not been rebutted by the Respondent.[35]To strike out the case without a hearing on the merits is arguably a breach of ECHR Article 6 (right to a fair trial). Any duties performed by the Claimant at the Embassy were not undertaken pursuant to her contract of employment. The reality was that she was a domestic worker and housekeeper only and that any duties performed at the Embassy were peripheral to her principal function. The Relevant Law[36]Article 31(1) of the Convention provides, so far as is relevant: 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.[37]Article 39(2) of the Convention provides: When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall not cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but which shall subsist until that time. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist. Supreme Court’s Judgment in Basfar v Wong [2022] UKSC 20[38]The facts pertaining to Ms Wong are ostensibly very similar to those of the Claimant. Ms Wong was a migrant domestic worker who worked in the household of Mr Basfar, a member of the diplomatic staff of the mission of the Kingdom of Saudi Arabia in the United Kingdom. Ms Wong claimed that she was a victim of human trafficking who was exploited by Mr Basfar and his family by being forced to work in circumstances of modern slavery. Mr. Basfar applied to have Ms. Wong’s claim struck out on the grounds that he is immune because of his diplomatic status.[39]In Reyes the Supreme Court had unanimously held that the employment and alleged acts of ill treatment of the claimant by the Respondent diplomat were not performed “in the exercise of his functions as a member of the mission” within the meaning of Article 39(2). The acts alleged in Reyes were plainly not done for on behalf of Saudi Arabia and the same is equally true here (see paragraph 48).[40]At paragraph 27 the Court agreed with Mr Basfar’s contention that employing a domestic worker does not itself constitute the exercise of a “commercial activity” by a diplomatic agent within the meaning of the exception.[41]At paragaraph 37 the Court held that ordinary contracts incidental to daily life in the receiving State do not constitute “commercial activities”, within the meaning of Article 31(1)(c).[42]At paragraph 41 the Court concluded that it was satisfied that, on the assumed facts, Mr Basfar’s exploitation of Ms Wong was undertaken for his personal profit.[43]And at paragraph 43 “we cannot accept that exploiting a domestic worker by compelling her to work in circumstances of modern slavery is comparable to an ordinary employment relationship of a kind that is incidental to the daily life of a diplomat (and his family) in the receiving State.[44]At paragraph 52 the Court considered that Mr Basfar and his family had gained a considerable commercial benefit by the employment of Ms Wong with a fraction of her contractual entitlement to wages and latterly for no pay at all.[45]And at paragraph 57 the Court held that “unlike such day to day living services, such exploitation is an abuse of the diplomat’s presence in the receiving State and falls far outside the sphere of ordinary contracts incidental to the daily life of the diplomat and family members which immunity serves to protect.[46]At paragraph 101 the Court held that the allegations made in this case, and in other cases of alleged exploitation of domestic workers by diplomats, may be disputed in which event an evidential hearing is likely to be needed to determine whether or not the action falls within the Article 31(1)(c) exception to immunity. Discussion and Decision The Facts[47]The question for this Tribunal was whether the Respondent’s employment of the Claimant as a domestic servant (in assumed circumstances of modern slavery) was a commercial activity exercised by the Respondent outside his official diplomatic functions within the meaning of Article 31(1)(c) of the Convention.[48]I decided that the assumed facts of the current case are, in all material respects, substantially similar to the facts of Basfar.[49]I conclude that a claim instituted against a foreign diplomat by his domestic servant in relation to work in his home, in (assumed) conditions of human trafficking and modern slavery constitutes “commercial activity exercised outside his official functions” under Article 31(1)(c) of the Convention. It therefore comes within the exception to diplomatic immunity in that Article.[50]In reaching this conclusion I am conscious that the burden of proof is on the Respondent to demonstrate why I should exercise my discretion to strike the claim out and on the facts presented I do not consider that the Respondent has satisfied me that the claim as presented is bound to fail. That is, of course, not the same as saying that the claim is bound to succeed on its substantive merits, but rather that on the assumed facts as presented, and in the light of the Supreme Court’s decision in Basfar, the Respondent has not satisfied the relatively high hurdle for a strike out.[51]Accordingly, the Respondent employer does not have diplomatic immunity and the case against him is not struck out.[52]A preliminary hearing will be listed to make directions for the future conduct of the case.
The Facts
[1]The claimant, a citizen of the Philippines, worked for the respondent, a Kuwaiti diplomat, from 12 September 2016 until 25 June 2020, first in Kuwait, then in London.[2]She has brought claims of constructive unfair dismissal, arrears of pay, and breaches of the Working Time Regulations in not being allowed to take holiday, and failing to prove her with pay slips. The full list of issues as prepared by Employment Judge Joffe following the case management hearing on 27 April 2023, is appended to this judgment.[3]The respondent is a serving diplomat, and has claimed diplomatic immunity from civil suit. He applied therefore for the claim to be struck out. Following a hearing on 4 June 2021 Employment Judge Nicolle decided, in a judgment sent to the parties on 6 March 2023, that it should not be struck out, as whether the respondent had immunity depended on whether the claimant could establish on the evidence that she was a victim of modern slavery and had been trafficked, was in servitude, or coerced, whether by an actual or threatened abuse of power. Writing that judgment was postponed to the handing down of the Supreme Court decision in Basfar v Wong UKSC 20.[4]This hearing therefore was to hear evidence and find facts to establish whether the claimant was a victim of modern slavery, which would remove the respondent’s immunity, and then, if it did, whether she had proved her claims, and what was appropriate remedy. Preliminary Matters and Conduct of the
Hearing
[5]There had been mention of a race discrimination claim, which I understood from the case management order was not live, but the schedule of loss pleaded a substantial claim for injury to feelings, aggravated damages and personal injury for race discrimination. As updated on the first day of hearing, this appeared as award for disability discrimination. I explored whether there was a discrimination claim. Neither race nor disability is ticked in the claim form. Neither was identified in the case management discussion. There has never been an application to amend. Asked, through the interpreter, whether she had brought a race discrimination claim, the claimant said she had, but it was subsequently conceded by counsel that there is neither a race or disability discrimination claim.[6]I heard an application by the claimant not to admit to evidence a witness statement by police officer Nikki Hubbard, served last week, or some video clips, dating from the period of employment. On exploring the dispute, it turned out the video clips had been served with other documents on 27 October 2023 but overlooked by the claimant’s solicitors, so there was no ambush, as had been suggested. As for the police officer’s statement, the officer had agreed to prepare one for the January 2024 hearing but had not understood, when that hearing was postponed by agreement of the parties, that it was still required. The respondent’s solicitor had not followed it up until recently put in funds by the respondent. I also took into account that the claimant would have to adduce more evidence of loss post-termination if the claim was to complete in the 5 days allotted, and given the relevance of her evidence to some of the issues, admitted the statement to evidence.[7]A witness order for the officer’s attendance was drawn up and served on 23 July.[8]Initially the respondent did not propose to attend the hearing to be questioned on his witness statement. I was told he was in London and enquired whether he might wish to attend remotely. That afternoon I was told he did so wish, and the claimant did not object. The respondent required an Arabic interpreter and HMCTS booked one. However on the afternoon of day three the respondent communicated through his solicitor that he had decided not to give evidence after all. I have read his witness statements and the grounds of response document. There is no witness statement from his wife.[9]The tribunal was about to start hearing evidence on the afternoon of the first day when the tribunal was informed that the Tagalog interpreter who had attended that morning was not an HMCTS contracted interpreter, but worked for Kaalayaan, an organisation supporting the claimant. He was in any case unable to attend after the first day. As neither party therefore would be able to follow proceedings I adjourned the hearing to 10 am on day two, in the hope that interpreters could be found. Regrettably although an Arabic interpreter attended remotely, no Tagalog interpreter had been found, remote or in person. An HMCTS senior manager authorised use of a non-contracted agency interpreter and it was therefore possible to start hearing evidence on day three. The claimant was questioned through an interpreter on day three.[10]On the afternoon of day three, after the claimant had completed her evidence, and before the police officer was called, I heard an application by the respondent to order disclosure of the police crime report and the body camera recording made by another, uniformed, police officer who took the claimant’s statement on 30 June. At the case management hearing such an application had been refused. However, on day two the claimant had served a short statement of Sheila Tilan, the support worker who had accompanied the claimant to the police station on 30th June (Ms Tilan stated it was on 25 June, which could not be accurate as there was later CCTV evidence of the claimant being in the flat, which the claimant did not dispute). She did not sit in on the claimant’s interview. She did say that the officer (whom she believed to be DC Hubbard) had been dismissive of the claimant’s account. When this was shown to DC Hubbard, on the morning of day three, she wanted to contact the interviewing officer about this allegation, found she had left the force, then went into the police file and noticed a link to the body camera recording or 54 minutes, which, after obtaining permission to access a recording of an interview not conducted by her, she had listened to. She also reread the crime report. The substance of the claimant’s evidence to the police was not mentioned in DC Hubbard’s statement. The report and recording could not be disclosed without an order of the tribunal. The respondent’s solicitor believed that the claimant’s contemporary account would contradict her current evidence.[11]I refused the application because it would require a substantial adjournment so that both sides could read the lengthy crime report and review a 54 minute recording. The tribunal would also have to review it before the claimant could be recalled. It would disrupt the hearing allocation. It might not be possible to conclude the hearing or give judgement. As for the new allegations made by Ms Tilan about the conduct of the police officer, it was already clear that the rest of her evidence was hearsay, and her witness statement had been prepared four years after the event and apparently without records, so may not be useful. It was not necessary to read the documents and view the video on other points because the claimant had given her evidence and been cross examined. On this issue, there had been no material change in circumstances. Evidence[12]Evidence was given by the claimant Jeralyn Alicante, in person through a Tagalog interpreter, and by DC Nikki Hubberd of the Metropolitan Police, in person and in English.[13]There was a hearing bundle of 317 pages, although some were redundant tribunal correspondence, and other pages included the witness statements and the Supreme Court Judgment in Basfar. Findings of Fact[14]These findings are made after considering the evidence. Where there is dispute of fact between claimant and respondent I have given little or no weight to the respondent’s statement, as he was not available for questioning, and his wife did not even tender a witness statement. Nevertheless, in answers to questions the claimant’s story became more nuanced, concessions were made and some contradictions explored. That is not to say that she was wholly untruthful. Much may have been lost in translation both ways in the preparation of her case.
The Facts
[15]The respondent has suggested that amendments to her claim following the defence of diplomatic immunity are there to bolster a claim that she was in servitude. While some of this is the case, the original grounds of claim contained material about being told she could not go out and might be reported to the police. Paragraph 20 stated: During the course of her employment, the Claimant was placed under a great deal of pressure by the Respondent and his family whereby she felt unable to leave the diplomatic residence, or even to go out, without the presence of the Respondent or his wife. The Claimant never tried to take a chance to go out to the shop because she was afraid of her employer’s reaction. They would scold her and shout at her, telling her that if she talked to anyone, or tried to leave the premises, the police would arrest her and she would be deported to the Philippines. There was no explicit reference however to being in servitude or trafficked.[16]The claimant was recruited to work for the respondent in Kuwait through an agency. She wanted to work to support her children, then aged two and four. She applied to work in the Middle East because the agency would not charge her a placement fee for that. The agency found her employment with the respondent’s cousin, and applied for a passport for her, which she collected at the airport to go through immigration, and handed to the employer’s driver on arrival in Kuwait.[17]She started work in Kuwait on 12th September 2016. There is no contract of employment for this time in the hearing bundle, but she recalls it was with Omar Alfailawaki, the respondent's cousin. According to the respondent, the terms of this contract entitled her to return home for a break after two years. She undertook domestic duties such as looking after the children, cooking meals, cleaning the house and doing the laundry. She was able to socialise with other Filipino maids. She was the only member of staff in the house, other than the driver who took her around when she wanted to leave the house.[18]In August 2018 the respondent was posted from Kuwait to London and she agreed to go. He applied for a visa for the claimant to come with him. A contract of employment is required by the Home Office. The claimant’s contract, in English, and signed by the employer but not by the claimant, is dated 14th August 2018. It provides that the claimant is to work 42 hours a week from Monday to Saturday, from 8:00am to 4:00pm, with a one hour break in the day. She was to be paid £7.50 per hour, monthly in arrears. She was to have 30 days paid holiday a year.[19]The contract stipulates that she was to have her own room with a lock or bolt on inside of the door, and she was provided with a key. It was to have ventilation and natural light. She was to take her own meals, and could have independent access to the building. She was to have a bathroom, radio and television. In her witness statement the claimant says that she was told she could keep her own passport.[20]The claimant, then aged 26, moved to London on the 25th January 2019, once she had a visa. In the interim, she lived with the respondent's mother, who bought her some warm clothes for London. On the journey to London, she was accompanied by Omar Alfailawaki, who carried her passport.[21]Although it was said in the claim form and in the witness statement that the claimant did not have a lockable room in London, when questioned, she said there was a sliding lock, but had been asked not to use it so that when the children woke up in the morning they could come into her room to ask her to help them. When the claimant started work for the respondent in Kuwait in 2016, the children were aged 16 and 11, so by 2019 they will have been about 19 and 14.[22]The claimant says in the claim form and witness statement that her room in London was a storeroom without natural light, but In evidence she explained that it did have natural light from a window (as shown in the video). The room was small but clean and painted. There was a modern en suite bathroom and an air conditioning unit over the door. It contained a single bed and a wardrobe, an iron and an ironing board. The claimant’s evidence was that two family suitcases were stored in the room in the wardrobe, and when guests came to stay, their suitcases were also left there and some clothes on hangers. The claimant kept her clothes in one of the suitcases. Of the video of the room seen by the police officer when she attended the flat, she agreed it was her room, but a small table and a bedside lamp had been substituted for the suitcases.[23]The claimant did not have a key to the residence, but the front door was not locked if the family went out. She denied going out shopping for herself or for the respondent. Most of the food was delivered on an Ocado order. Occasionally the respondent’s wife went out food shopping for herself, and on occasions would call the claimant to ask her to come to the shop to help her carry shopping home. On these occasions the claimant would leave by the front door and walk “two to three minutes” to the shop, then walk back with her mistress.[24]The claimant made breakfast for the family, and also lunch or dinner - the family ate one main meal and a lighter meal or snacks at other times. The respondent’s wife, who in London did not go out to work as she had in Kuwait, also did some cooking, because the claimant did not enjoy Arab food and found it difficult to cook. The family ate in the living room and the claimant ate the same food in the kitchen. One of the June 2020 videos shows her using her phone in the kitchen and she said this was while she was waiting for the family to finish so she could clear.[25]After the children left for school she would clean the flat and do the laundry.[26]There was dispute between the claimant and the respondent’s written account of when she worked. She started early, whether that was 6:00 or 8:00 am, when the children woke and wanted help finding clothes for the day, fixing the daughter’s hair, and getting their breakfast. Their mother woke later, perhaps 10:00 am and she made her breakfast. She then cleaned the flat and did any laundry. Later she made the main meal. The claimant says, and it is disputed, that she worked late into the evening making more food for the children, and could be called as late as 1 am. I concluded that she may not have been working continuously, and rarely late at night, but was expected to be on call.[27]The claimant had a mobile phone and a SIM card. She said in the witness statement that she had to hand it to the respondent's wife when she woke up, and it was handed back to her later in the day, at around 4:00 or 5:00 pm, later corrected to 6:00 or 7:00 pm. In answer to a later question she said she kept the phone in her room, it was just that she was not allowed to use it when she was working. So it does not appear that the practice of handing it to the respondent’s wife was habitual or regular, nor is it clear how often she had to hand it in.[28]She was then able to contact friends and family by telephone or on Facebook. She posted frequently. The tribunal does not accept those posts, of themselves, show that she was happy. People like to present themselves on social media as living their best lives, when the reality may be quiet desperation.[29]Her mistress once asked why she telephoned her family while the London family was asleep. The claimant said this was because of the time difference with the Philippines. Other than this comment there is not mention of monitoring how the phone was used or who she could contact. She mentioned that the respondent’s wife had asked her not to post on the internet any photograph of her without hijab (which she did not wear at home with just family present), but that was it.[30]If the claimant’s account of phone use is accepted , I infer that she was not allowed to use her phone during working hours, and presumably her working hours will have ended when her phone was handed back, although she may still have been on call from time to time. Her account may not be consistent however, because the video evidence shows her on the afternoon of 24 June using the phone at 15.41, and on 29 June at 14.56, both times when she had said it would have been handed in, and in one of them she is waiting to clear and in the other has a pile of laundry on the table in front of her.[31]It does not appear the claimant had a day off in the week.[32]In August 2019 she accompanied the family on a short visit to Kuwait where, she says, she continued with her normal duties.[33]The claimant was paid each month in cash. There is a dispute on whether she received £1,400 each month and asked the respondent to remit £200 of that to her family by Western Union, as he says, or whether she was handed £400 and she handed back £200 to be remitted, as she maintains. She could not open a UK bank account because there were no utility bills in her name: the tribunal accepts that observance of money laundering precautions by banks means it is very difficult even for those in regular contracted employment to open an account if they are new to the country.[34]Under the reported terms of her Kuwait contract, she had been due to take a break to go home towards the end of 2018, but was asked to defer it. On 23rd November 2019 she flew to the Philippines in a trip arranged by the respondent, returning on the 29th January 2020. (The documents show the flight was booked for 19 January and extended to 29 January, at her request, says the respondent. The claimant denied it had been extended.)The claim form had said she was not paid during this time, and had to borrow money from the respondent’s wife, but in fact she was handed cash before she left to cover the leave. There was no suggestion she had to repay this on return.[35]Before she went, she had to attend the Philippines Embassy to get a certificate of employment for her re-entry to the UK. For this she was handed her passport, the contract of employment and a document showing a list of payments of £1,400, shown as £900 salary and £500 expenses, with the claimant’s name against the entries (the document was not available to the tribunal but D C Hubbard says she found it in the claimant’s phone when the claimant handed it to her so that she could read the employment contract). She then spent 3 or 4 hours waiting at the Embassy to get the document. The claimant says this was the first time she saw the figure of £1,400 mentioned as her pay. She queried this amount, and was told that she had to sign or she would not be able to return to the UK. The claimant says that she signed because she had two children to support, she had not seen them for three years, and she was the sole breadwinner.
The Relevant Law
[36]Just before she left, when she saw the air ticket the claimant complained the flight was only to Manila, when she lived in Davao, around 1,000 km away, and there was, she said, an argument.[37]According to the claimant she left the house rarely. She agreed that she had been to a nearby restaurant, Chelsea Burger, with the respondent’s daughter on a few occasions, the number was disputed. She also mentioned that the parents did not like their daughter to go out in the evening unaccompanied, so she accompanied her. It was not clear who was chaperoning who. There is a video of the claimant and teenage daughter in Piccadilly Circus enjoying themselves. The claimant points out that she was enjoying a rare trip out. DC Hubbard considered it significant that the claimant was carrying her phone on this occasion.[38]In preparation for the claimant’s visit to the Philippines, the respondent’s wife accompanied her on an Oxford Circus trip to buy chocolate for her mother and children. The claimant paid for these presents.[39]On one occasion the respondent’s wife became concerned that her eyes were infected and she attended the private hospital (Cromwell) used by Kuwaiti staff for a check up. The respondent paid the bill.[40]The list of issues, drawn by the Employment Judge at the case management hearing from the detailed rider to the claim form, as neither side had prepared a draft, alleges that she “ was told by the respondents’ wife that she was not allowed to leave the premises or speak to anyone”, that “if she ever left, she would end up in prison, as they would report her to the police”, and “that she “was not allowed to leave the house without the respondent or his wife. She was scolded and shouted at by the respondent on his wife and told that if she talked to anyone or tried to leave the premises the police would arrest her and she would be deported to the Philippines”. The witness statement repeats these allegations in general terms but without any detail of when or how this was said. When being questioned about her generally friendly relations with the respondent’s family, she opened up, saying that from about April 2020, which is soon after the commencement of the first Covid-19 lockdown in the UK, her mistress became more irritable. There was a dispute about some laundry, when the respondent’s wife raised her hand as if to slap her, though she did not. The claimant started to look on the internet for advice and made contact with the group assisting Filipinas. In May, according to the claimant, there was a row about some food the claimant had cooked. She was told she must have put dirt in it. She was told they were going to keep the food, get someone to inspect it, and if something was wrong they would call the police. The claimant continued cooking meals but relations were more hostile. The installation of CCTV may have been because of the poisoning suspicion.[41]On 14th June 2020 there was another dispute. The claimant saw the couple's son eating Doritos and wanted to buy some for herself. She asked if she could go to the shop to get some. The respondent’s wife said she would get them and the claimant could give her the money. It looks as if this episode precipitated the claimant's departure with the help of the support group.[42]On 30th June 2020, before the family woke, the claimant left the residence with a backpack of personal belongings and did not return. She met a support worker, Sheila Tilan from Kanlungan Filipino consortium, who took her to Charing Cross police station, accompanied by an Al Jazeera cameraman making a documentary on migrant workers, to declare that she had been kept in servitude. A uniformed police officer made a crime report and took her statement. Unusually this was recorded on her body camera, apparently because the constable was very junior and did not want to make a mistake in taking it down. The case was then assigned to DC Nikki Hubbard, who through the FCDO arranged to visit the respondent’s premises on 7 July 2020 and ask him and his wife about what the claimant said. She was shown her bedroom, she checked that the clothes she saw with Primark labels had been worn and were of the claimant’s (small) size, not the family’s, she was shown the CCTV clips produced to the tribunal. These include CCTV from 24 and 26 June 2020 showing the claimant sitting in the kitchen during the day swiping and texting on her phone, a shirt phone video of her being waved off at Heathrow in December 2019, saying ‘see you in January’, and one of her out with the respondent’s teenage daughter in which she could see the claimant was holding her phone. DC Hubbard describes the approach to the embassy through an unlocked pedestrian gate, into a large reception area where she was not challenged (she was in plainclothes), and when she asked the concierge for directions, was directed upstairs to the flat. The claimant then attended Belgravia police premises on 15th July 2020 where she was interviewed by D C Hubbard with a note taker, the video recording equipment having failed. At this interview DC Hubbard asked the claimant if she had a contract, and was handed her mobile phone which showed it, and where she came across a document which she reports as saying the claimant had £900 salary and £500 allowances and another document which she says was “a list of the dates with £1,400 payments bearing Ms Alicante's signature”. (The claimant told the tribunal she could not produce this document because she had replaced her phone).[43]On reviewing the evidence DC Hubbard, a frontline officer of 17 years’ experience, with, she says past experience of cases of maids seeking refuge, concluded that she could not substantiate the allegation of servitude. She sent her report to the Home Office. They decided not to refer her into the NRM (national referral mechanism, set up to assist victims of modern slavery) and asked DC Hubbard to serve their notice to that effect on the claimant. This was delayed because of Covid restrictions and difficulty tracing the claimants whereabouts. She attended the claimant’s address (a Kanlungan house) on 12th December 2020 and was told that she was at work in Chelsea as a housekeeper and finished work at 2:00 pm. Later that day the claimant attended Hammersmith police station where she was served with the papers and it was explained that the application to be treated as a modern slave was rejected.[44]After the claimant left and the police became involved the respondent had sent her passport to the Home Office, who passed it to the Philippine Embassy, and the claimant received it in July or August 2020. She has applied for asylum, but her application is on hold as she hopes soon to marry an Iranian with settled status. She has an interview with the Nottinghamshire registrar of marriages at the end of this month. .[45]On the advice of the not-for-profit group Kalayaan, the claimant sent a grievance letter to the respondent on 14th August 2020, which is not in the bundle, then to ACAS for early conciliation, and presented this claim on 3 November 2020.[46]Since leaving the respondent the claimant has worked intermittently in domestic jobs, but has not worked since May 2023. Her work visa ran out in January 2021 and it is conceded that if successful in the unfair dismissal claim she cannot claim loss of earnings after that date. Relevant Law Diplomatic Immunity
The Facts
[47]Much of the law relevant to this case is set out in the Supreme Court judgement in Basfar. Diplomatic immunity is a fundamental principle of national and international law under principles agreed in the Vienna Convention of 1961 and enacted in the Diplomatic Privileges Act 1964. Its purpose is to provide for the efficient performance of diplomatic functions.[48]Article 31 (1)(c) of the Convention provides that a diplomat has immunity from the civil jurisdiction of the receiving state (meaning the state to which he is posted). The only exception is in the case of “an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official functions”.[49]Employing domestic staff for day to day support is not a commercial activity, although once a diplomat ceases to be attached to the mission in the receiving state, he is no longer immune when employing domestic staff, and his immunity only extends to the employment of staff whose activity is part of the work of the mission. Thus in the cases of al-Malki v Reyes 2017 ICR 1417 and Wokuri v Kasram 2012 ICR1283 the diplomat was no longer immune from claims by domestic staff.[50]However, a serving diplomat is immune, unless (Basfar) the claimant can establish she was working because of “servitude, forced labour and human trafficking recognised in international law”.[51]Modern slavery was there described as a “brutal form of organised crime in which people are treated as commodities and exploited for personal gain”. It is an umbrella term. It can include working, as defined by the ILO, where the worker cannot refuse or leave because of threats, violence, coercion, deception and abuse of power such that they are “completely controlled”. A UN report of 2002 refers to the restriction on freedom of movement, control of personal belongings, and lack of informed consent as to the terms under which she is working. An ILO report of 2005 refers to the “menace of any penalty” whether physical abuse or threats to denounce the worker to police or immigration, failing to pay wages, retaining identity documents, and physical confinement. Chattel slavery, is now relatively rare, and modern slavery includes servitude, where a worker is “unlawfully compelled or coerced by another to render any service”, and trafficking, where there is an act, by recruitment, transportation, transfer harbouring or receipt of trafficked persons, the means by which this is done, such as the threat or use of force, coercion, abduction, fraud, deception, abuse of power or vulnerability, or giving or receiving payment or benefit to someone to attain the consent or person has control of victim, and finally, it is for the purpose of exploitation, which includes forced labour or slavery or servitude.[52]The Modern Slavery Act 2015 provides at section 1(3): “in determining whether a person is being held in slavery or servitude or required to perform forced or compulsory labour, regard may be had to all the circumstances. Section 1 (4)continues: “For example, regard may be had—(a) to any of the person's personal circumstances (such as the person being a child, the person's family relationships, and any mental or physical illness) which may make the person more vulnerable than other persons;(b) to any work or services provided by the person, including work or services provided in circumstances which constitute exploitation within section 3(3) to (6).”[53]Section 3(3) is about organ transplant. Section 3(6) is about children and vulnerable persons. The claimant is none of these. Section 3(5) however relevantly states: (5)The person is subjected to force, threats or deception designed to induce him or her—(a) to provide services of any kind,(b) to provide another person with benefits of any kind, or(c) to enable another person to acquire benefits of any kind.[54]In order to decide whether a serving diplomat has immunity, the employment tribunal must therefore assess the facts found to decide whether the conditions under which the claimant worked amounted to forced labour, servitude or trafficking, and in particular, whether sthe claimant provided services subject to force, threats or deception. Other Relevant Law[55]If the claimant establishes that, and the respondent’s immunity is lost, the tribunal is to assess whether there were the numerous breaches of contract that she alleges, in respect of payment, holidays, and rest breaks. In respect of payment, the tribunal may be engaged in determining how many hours a week the claimant worked in order to assess whether she was underpaid by reference the national minimum wage at the time. When the contract as issued in 2018, the contracted £7.50 per hour was just below the NMW for over 25’s at £7.83. From March 2019 it was £8.21, and from March 2020, £8.72.[56]The respondent also relies on an argument that the Working Time Regulations do not apply to a domestic servant in a private household. Regulation 19 of the Regulations excludes such workers from the protection (as relevant here) of regulations 4 (maximum working time), 6 (night workers), 7 (health assessments), and 8 on pattern of work. Section 19 does not exclude the application to domestic servants of the regulations on periods of daily rest, weekly rest breaks, and paid annual leave.[57]In submissions it was raised that unless service with the family in Kuwait was counted, and it was submitted that it did not, the claimant does not have enough qualifying service for an unfair dismissal claim, so the tribunal does not have jurisdiction.[58]The respondent also submits that the nine week holiday over Christmas 2019 satisfied the holiday requirement for employment from January 2019 to June 2020. The claimant counters that she was already owed a break with her family under the Kuwaiti contract. Discussion and Conclusions[59]There is no doubt that the claimant was exploited by her employer, demonstrated in the extensive breaches of UK employment law and the contract, notably as to rate of pay, hours of work, rest breaks and weekly rest. She worked long hours for less than national minimum wage. Employment tribunals know, from the many claims brought for failure to pay wages at all, or failure to permit a worker to take holiday, (sometimes none at all during a year), or representing to the authorities that a worker does 16 hours a week for national minimum wage, when the reality is that they work far longer for the same money, (because the worker is on a student visa, or wants to claim housing benefit),that there are some very bad employers. Being exploited in these ways does not of itself however mean that the worker is doing forced labour or in servitude. The question in this case is whether the line was crossed, in particular whether the claimant was subjected to force, threats or deception designed to induce her to provide services of any kind.[60]The tribunal does not accept that the claimant was trafficked. She volunteered to work abroad. It has never been suggested that the respondent had some kind of hold over her in the Philippines. She had the opportunity to leave the respondent and stay in the Philippines, or work elsewhere, when she took the nine week break. There could have been no comeback if she did not return.[61]It is also, as the police officer concluded, unlikely that allegations of working for the family because of force, threats or deception can be substantiated for the period before her return at the end of January 2019, otherwise she would have failed to return. At this point she now knew that they represented that she was being paid £1,400 when she was in fact being paid £400 a month, but she still returned. She may have done thisthrough economic necessity, but she was not forced. It is also relevant that she was paid (though probably much less than the contract amount), unlike Ms Wong, who went unpaid for several months before leaving.[62]Her living arrangements do not suggest the conditions of some people kept in servitude. She had a private room, which she could lock if she wanted to, it was not a shed or cupboard, and what is said about it in the claim form and witness statement indicates that these passages were drafted for her without much care for accuracy in detail. She ate food which she cooked for the family. It was not accurate to call it “leftovers” as she ate when they did.[63]A gilded cage however is still a cage. The tribunal has to decide whether she was unable to leave the residence except when accompanied by the family. She was not locked in. It is not clear if she ever asked for a key so she could get back in on her own; she does not say that she was refused one. Except during working hours she had a phone with access to the Internet and used it in and out of the house. Many employers restrict phone use in working time and the claimant’s evidence taken as a whole suggests this is what was happening. She could also take it with her when out. Having daily use of her phone and access to the internet inside and outside the home does not suggest servitude.[64]It could be that she did not leave the house because she was in a big city with little command of English, or that she wanted to save her money. It could also be that before lockdown she left the house more often than she now recalls. If it is true that if she never left she must never have bought clothes or makeup, as she had no bank account or credit card. It is also odd that suddenly in June she wanted to go to the shop to buy a snack, if she had never been to the shop to buy anything at all before. These factors, plus the house being left unlocked, mean there must be some doubt that she was threatened with denunciation and deportation if she went out on her own.[65]It is still troubling that she did not keep her own passport. It was put to her that it was locked up in the safe with the family passports. It could have been kept there for security reasons, given the value of the passport on the black market and the expense of replacing it. There was no evidence that she asked to keep her passport, even though she says she was told when she signed the contract that she could keep it. Nevertheless, it would be a way for the family to stop her leaving, when presumably they had invested money in her fares and sponsoring the visa.[66]As for threats, I conclude that it is unlikely there were any threats until lockdown late in March 2020, when relations soured. The only detail the claimant gave of any threat is the April 2020 dispute about laundry, and the only mention of involving the police is in May, when the respondent’s wife suspected she was doctoring the food. Even then they did not call the police. Of the allegation that she was threatened with the police if she left, the claimant did know she had a visa and the right to work, although she may have been vague about whether she was permitted to work for anyone other than the visa sponsor. Given the generality of this part of the claim, I am concerned that mention of calling the police (in the row about suspected poisoning) is another example of the claimant being misunderstood and her claim wrongly drafted stating a general threat to denounce her to the authorities if she went out on her own, when that is not what happened.[67]Weighing up the evidence, the tribunal concludes that although working long hours for low pay, the claimant does not establish that she was a victim of forced labour, or working in servitude, or working because of force, threats, or deception. The principal and undisputed factors leading to this finding are that she had uninhibited access to the outside world by means of the phone, and that she volunteered to return in January 2019 when she had the opportunity not to. These factors, and the claimant providing detail of her room, and the threats, which do not bear out the more sweeping general allegations, do not show that she was forced or “completely controlled”.[68]It follows that the respondent retains diplomatic immunity from civil suit. But for this, many of her claims may have succeeded. EMPLOYMENT JUDGE GOODMAN 26 JULY 202431 July 2024 ................................................................................ .................................................................................. APPENDIX The Issues 1.Diplomatic immunity 1.1 Is the respondent immune from suit in respect of the claimant’s claims by virtue of the Vienna Convention on Diplomatic Relations 1961 and Section 2(1) of the Diplomatic Privileges Act 1964? Unfair dismissal2.1 Was the claimant dismissed?2.1.1 Did the respondent do the following things:2.1.1.1 Throughout her employment with the respondent the claimant was generally not permitted to take any holidays and neither was she ever paid for holidays. The one exception to this was during Christmas 2019, when between 23rd November 2019 to 19 January 2020, the claimant was permitted to visit her family in the Philippines. Save for that holiday, the claimant was not allowed to have any days off whilst she worked for the respondent.2.1.1.2 The claimant was told by the respondent’s wife that she was not allowed to leave the premises or speak to anyone.2.1.1.3 She was provided with a phone in order to speak to her child and friends in the Philippines. However, she was questioned by her employer when she spoke to her friends as to why she had to use her phone whilst her employer was sleeping.2.1.1.4 The phone was taken randomly from her by her employer. She was told that she needed to focus on her work and should not call anybody.2.1.1.5 She was told by the respondent and his family that if she ever left, she would end up in prison, as they would report her to the police.2.1.1.6 She had a bedroom with an en-suite shower. However, in breach of contract2.1.1.6.1 it was a storage room.2.1.1.6.2 it had no natural light or ventilation.2.1.1.6.3 it was not for her own exclusive use as it was used by the family to store a vacuum cleaner, boxes and suitcases.2.1.1.6.4 it was not a private room with a lock and safety bolt from within the room.2.1.1.6.5 she did not have a key to her room.2.1.1.7 She did not have her own meals but was allowed to eat leftovers.2.1.1.8 She did not have independent access to the residence (for example, housekeys and security code) where she resided.2.1.1.9 She did not have a radio.2.1.1.10 She did not have a television.2.1.1.11 The claimant was routinely required to work excessively long hours, over and above her contracted 42 hours per week. The claimant was typically expected to work from 6am to 1am the following morning.2.1.1.12 The claimant was not allowed to leave the house without the respondent or his wife. She was scolded and shouted at by the respondent and his wife and told that if she talked to anyone or tried to leave the premises the police would arrest her and she would be deported to the Philippines.2.1.1.13 She was not paid her full salary or National Minimum Wage?2.1.2 Did that breach the following terms of the claimant’s contract:2.1.2.1 A term that the claimant’s normal hours of work were 42 hours per week, to be worked between 9 a m and 4 pm on weekdays and Saturdays with a daily paid lunch break of one hour.2.1.2.2 A term that the claimant was entitled to a wage of £7.50 per hour, payable monthly in arrears on or around the 20th day of each month.2.1.2.3 A term that the claimant was entitled to 30 days of annual leave each leave year2.1.2.4 A term that the claimant was entitled to:2.1.2.4.1 Suitable alternative accommodation for her exclusive use.2.1.2.4.2 A private room with a lock and safety bolt from within the room.2.1.2.4.3 The key to her room,2.1.2.4.4 A private room with ventilation and natural light.2.1.2.4.5 Her own meals2.1.2.4.6 Independent access to the residence (for example, house keys and security code) where she resided.2.1.2.4.7 A private bathroom.2.1.2.4.8 A radio.2.1.2.4.9 A television.2.1.2.4.10 A term that the claimant would be entitled to always retain custody of her passport other than when it was required by a third party for official purposes such as applying for a visa.2.1.2.4.11 The implied term of trust and confidence.2.1.3 Was the breach a fundamental one? The Tribunal will need to decide whether the breach was so serious that the claimant was entitled to treat the contract as being at an end.2.1.4 Did the claimant resign in response to the breach? The Tribunal will need to decide whether the breach of contract was a reason for the claimant’s resignation.2.1.5 Did the claimant affirm the contract before resigning? The Tribunal will need to decide whether the claimant’s words or actions showed that they chose to keep the contract alive even after the breach.2.2 What was the reason or principal reason for dismissal- i.e. what was the reason for the breach of contract?2.3 Was it a potentially fair reason?2.4 Did the respondent act reasonably in all the circumstances in treating it as a sufficient reason to dismiss the claimant? 3.Remedy for unfair dismissal3.1 Does the claimant wish to be reinstated to their previous employment?3.2 Does the claimant wish to be re-engaged to comparable employment or other suitable employment?3.3 Should the Tribunal order reinstatement? The Tribunal will consider in particular whether reinstatement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just.3.4 Should the Tribunal order re-engagement? The Tribunal will consider in particular whether re-engagement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just.3.5 What should the terms of the re-engagement order be?3.6 If there is a compensatory award, how much should it be? The Tribunal will decide: 3.6.1What financial losses has the dismissal caused the claimant? 3.6.2 Has the claimant taken reasonable steps to replace their lost earnings, for example by looking for another job? 3.6.3If not, for what period of loss should the claimant be compensated? 3.6.4 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? 3.6.5 Did the respondent or the claimant unreasonably fail to comply with it? 3.6.6 If so is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%? 3.7What basic award is payable to the claimant, if any? 4.Unauthorised deductions4.1 Did the respondent make unauthorised deductions from the claimant’s wages and if so how much was deducted?4.2 The claimant claims she was entitled to be paid in accordance with the National Minimum Wage Act 1998 and/or in accordance with the terms of her contract but was instead paid some £400 per month. 5.Working Time Regulations 19985.1 Was the respondent in breach of regulations 10, 12 and 13 of the Working Time Regulations1998?5.2 If so, to what remedies is the claimant entitled? 6.Itemised pay statements6.1 Did the respondent fail to provide the claimant with fully itemised pay statement at or before the time at which any payment of salary or wages was made to the claimant, contrary to section 8 Employment Rights Act 1996?6.2 If so, what remedies is the claimant entitled to?