Mr D Bussau, Counsel For the v Professor D Sarooshi, Queen’s Counsel — 2021

The claimant presented claims of unfair dismissal and discrimination arising from disability against the USA. The ET1 was first sent to RAF Mildenhall on 29 August 2019 and returned under Diplomatic Note No. 302. The claim was then transferred to Central London ET for service through the Foreign and Commonwealth Office, and was served via the diplomatic channel on 11 February 2020. The Respondent's ET3 was presented on 27 April 2020. The claimant then challenged the acceptance of the response, arguing that the earlier attempted service had been valid and that rule 91 of the Employment Tribunal Rules could cure any irregularity.

Employment Judge Brown held that section 12(1) and (2) of the State Immunity Act 1978 applies to documents instituting proceedings against a State, including proceedings relating to anything done by or in relation to the armed forces of a State while present in the United Kingdom. The Judge held that section 16(2) disapplies Part 1 only once proceedings have been instituted, and does not disapply the prescribed service procedure needed to begin those proceedings. The judgment referred to L and others v Y Regional Government of X and treated the distinction between the initiation of proceedings and later applications within existing proceedings as supporting that construction.

The Judge also said that, even if the response had been out of time, it should be accepted in the interests of justice. The Respondent had filed a substantive response in good faith within the period it understood to apply, the tribunal had itself required diplomatic service, and it would be unfair to reject the response after re-service through the proper channel. The judgment therefore affirmed the decision to accept the Respondent's response; it did not decide the merits of either substantive claim.