Guidance on Service of Employment Proceedings on Foreign States

September 29, 2014

Guidance on Service of Employment Proceedings on Foreign States

In the unusual case of Embassy of Brazil v De Castro Cerqueira, which raised novel issues relating to the service of employment proceedings on foreign sovereign states, a worker who was dismissed from the Brazilian Embassy in London on reaching the age of 70 has won the right to fight his case before an English Employment Tribunal (ET).

The worker claimed that he had been unfairly dismissed and discriminated against on grounds of his age. His employment contract contained a clear submission to English jurisdiction and, on that basis, the Embassy did not rely on state immunity and accepted that the ET had jurisdiction to consider his complaints.

However, as the respondent was a foreign state, the proceedings were sent to the British Embassy in Brazil and served on that country's Ministry of Foreign Affairs in Brasilia in accordance with Section 12(1) of the State Immunity Act 1978. The ET subsequently accepted that good service had been achieved.

In challenging that decision, the Embassy's lawyers argued that the method of service employed, although in accordance with the procedures laid down by the Act, was not one permitted by the laws of Brazil, where service of such proceedings could only be achieved with the authority of the Supreme Court.

The Employment Appeal Tribunal (EAT) accepted that Parliament cannot have intended that service of proceedings had to be achieved by the method specified in the Act even if that was contrary to the law of the state where service was to be effected. The Foreign and Commonwealth Office could not be expected to engage in activities within another state's territory if those actions would contravene the law of that state.

However, in dismissing the Embassy's appeal, the EAT noted that the means of service employed, whilst 'not provided for by the laws of Brazil', was not specifically prohibited either. In those circumstances, service of the proceedings was not 'contrary' to Brazilian law and had been effective for the purposes of the law of England and Wales.