Houghton v USA
| Jurisdiction | UK Non-devolved |
| Judge | Brown |
| Judgment Date | 14 June 2021 |
| Court | Employment Tribunal |
(Brown, Judge)
England, Employment Tribunal.
State immunity — Employment — Foreign military base — Claimant employed on United States' military base in United Kingdom — Claim for wrongful dismissal and discrimination — State Immunity Act 1978 — Service — Procedure for service — Whether Section 16(2) of State Immunity Act applicable — Meaning of “proceedings” — Whether Section 12 applicable — Whether service must be effected through diplomatic channels — The law of England
Summary:2The facts:—Mrs Houghton (“the claimant”) was employed by the armed forces of the United States of America (“the respondent”) at an air force base located within the United Kingdom. The claimant instituted proceedings against the respondent claiming unfair dismissal and discrimination arising from a disability.
The notice of claim was served on the respondent at a United States Air Force base located within the United Kingdom (“the first attempted service”). The respondent rejected service by way of diplomatic note stating that customary international law did not require a foreign sovereign to respond to proceedings initiated in another State unless service was effected through diplomatic channels in accordance with an applicable international convention or other method agreed to by the State concerned.
The proceedings were transferred to the Central London Employment Tribunal to allow the claim to be served through diplomatic channels. The claim was then served on the respondent through the British Embassy in Washington, DC. After service had been effected through diplomatic channels, the respondent filed a substantive response to the claim which was accepted by the Employment Tribunal.
The claimant applied for the decision of the Employment Tribunal to be reviewed, arguing that the first attempted service was valid, and that the respondent had filed its reply out of time. According to the claimant, where the proceedings related to the conduct of the armed forces of a State present in the United Kingdom, Section 16(2) of the State Immunity Act 1978
(“SIA”)3 operated to disapply the requirements of Part 1 of the SIA, which included the service requirements contained in Sections 12(1) and (2).The respondent argued that Section 16(2) of the SIA only applied to exclude relevant proceedings from Part 1 of the Act once those proceedings had commenced. It did not operate to exclude the procedural requirements for commencing proceedings against a foreign State contained in Sections 12(1) and (2) of the SIA. The respondent further argued that even if the claimant's interpretation was correct, the requirement for service to be effected through diplomatic channels contained within Sections 12(1) and (2) of the SIA applied as a matter of customary international law.
Held:—The decision of the Employment Tribunal to accept the respondent's response was affirmed.
(1) Section 16(2) of the SIA did not operate to exclude the requirement for a State to be served through diplomatic channels in accordance with sections 12(1) and (2) of the SIA (para. 40).
(2) “Proceedings” within the meaning of Section 16(2) of the SIA did not exist until the relevant State had been served in accordance with Section 12 of the SIA. As such, the exclusions contained in Section 16(2) for proceedings related to the actions of the armed forces of a State while in the United Kingdom did not come into effect until after the relevant State had been served. Section 16(2) could not disapply Part 1 of the SIA before there were proceedings (paras. 41–4).
(3) Where a State was the appropriate respondent to a claim, the fact that the claim involved the action or conduct of its armed forces did not derogate from the need for that State to be given time to respond to the proceedings. The subject matter of a proceeding did not alter the identity of the respondent as a State. The policy reasons for disapplying immunity to the actions of the armed services of a foreign State operating within the United Kingdom did not apply to the service of documents required to initiate those proceedings (para. 45).
(4) It was in the interests of justice for the respondent's reply to be accepted.
(a) The respondent had explained the reason for the delay and had filed its reply within the time it understood to have applied. The respondent's understanding that the procedure for service outlined in Section 12 of the SIA applied was supported by the Tribunal's own practice. It would have been grossly unfair for the Tribunal not to accept the response when it had agreed that service through diplomatic channels was required (paras. 47–8).
(b) A fully pleaded defence had been presented on the merits of the whole claim. If the time required for filing the reply was not extended, the respondent might have been liable for a wrong which it did not commit (para. 49).
The following is the text of the judgment of the Employment Tribunal:
The Judgment of the Tribunal is that:
1. S12 SIA 1978 applies to service of documents for instituting proceedings against a State, even where those proceedings concern proceedings relating to the armed forces of a State in the UK.
2. The decision to accept the Respondent's Response is affirmed.
1. This Open Preliminary Hearing was listed to consider:
1.1. Whether the Respondent's response should be rejected, including whether Employment Judge Brown's decision to accept the ET3 should be reconsidered and set aside.
2. By a claim form presented at the Watford ET on 12 August 2019 the Claimant brought complaints of unfair dismissal and discrimination arising from a disability (s15 Equality Act 2010) against the Respondent.
3. The claim was transferred to Central London ET for service via the FCO and the claim was then served on the Respondent via the diplomatic channel on 11 February 2020.
4. On 27 April 2020 the Respondent presented a substantive Response to the claim. On 17 July 2020 I determined that the Response should be...
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