Ishaani Shrivastava in leapfrog appeal from Employment Appeal Tribunal to Supreme Court

On 31 January 2020 the Employment Appeal Tribunal handed down judgment in Basfar v Wong UKEAT/0223/19/BA - It is the first EAT case to be granted a leapfrog certificate to appeal directly to the Supreme Court.

Professor Philippa Webb and Ishaani Shrivastava represent the claimant, a domestic worker from the Philippines who alleges that she worked in the residence of a current Saudi diplomat in conditions of human trafficking and modern slavery. They were assisted by Dr Rosana Garciandia. 

At first instance, the Employment Tribunal interpreted the exception to diplomatic immunity for a “commercial activity exercised by the diplomatic agent in the receiving state outside his official functions” (Article 31(1)(c) of the Vienna Convention on Diplomatic Relations 1961, incorporated into English law by the Diplomatic Privileges Act 1964) as applying to the trafficking and employment of a domestic servant in conditions of modern slavery.

On appeal, the EAT considered two issues. First, there was a fundamental question of precedent: whether a Court of Appeal decision is binding on a lower court when it has been reversed on a different ground by the Supreme Court. Mr Justice Soole accepted the Claimant’s submission that such a decision would only be of persuasive authority “for the reasons essentially advanced by Ms Webb here and below”. A case must be considered one continuous piece of litigation and its true ratio is to be found in the decision at the highest level in the litigation. This constitutes an important clarification of the reasoning in R v Secretary of State for the Home Department, ex parte Al-Mehdawi [1990] 1 AC 876 and has significance for the treatment of precedent in a broad range of cases.

The second issue was whether the Employment Tribunal has been right to prefer the observations of the majority in the Supreme Court to the reasoning and conclusion of the Court of Appeal and the Supreme Court minority in Reyes v Al-Malki [2015] ICR 289 on the meaning of “commercial activity” for the purposes of the exception to diplomatic immunity. On this point, Mr Justice Soole allowed the appeal, while noting “Whether those conclusions [of the minority in Reyes] should ultimately prevail is a matter for resolution at a higher level”.

The EAT granted the Claimant’s application for a leapfrog certificate, finding that the conditions for in S.37ZA of the Employment Tribunals Act 1996 were met: this is a point of law of general public importance; the result of the proceedings is so significant that a hearing by the Supreme Court is justified; and earlier consideration by the Supreme Court outweighs consideration by the Court of Appeal. The appeal has been recommended for expedition. The Claimant will now seek permission to appeal from the Supreme Court.

Philippa Webb of Twenty Essex and Ishaani Shrivastava of Devereux Chambers instructed by Nusrat Uddin, James Elliott and Sinead Nowak of Wilson Solicitors LLP.

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