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05 March 2018

Employment Appeal Tribunal considers territorial scope of whistleblowing legislation

In Bamieh v EULEX Kosovo and others, the Employment Appeal Tribunal (EAT) considered whether an employee of the Foreign and Commonwealth Office (FCO) could bring a whistleblowing detriment claim against two co-workers in relation to events which took place whilst all three were on secondment in Kosovo.

Ms Bamieh and the co-workers concerned were seconded to EULEX Kosovo, a body set up by the EU Council to help Kosovo achieve self-government following the Balkans war. Staff on secondment to EULEX remained under the authority of the state which had sent them, but were required to carry out their duties under the local chain of command. Ms Bamieh was employed by the FCO under a series of annual fixed-term contracts governed by English law. In 2014 her contract was not renewed. She alleged that this was because she had made a number of protected disclosures concerning corruption amongst senior EULEX staff.

Ms Bamieh brought claims in the Employment Tribunal against various respondents including the FCO, EULEX, the Head of EULEX and two other FCO employees who had worked with her in Kosovo, Ms Fearon and Mr Ratel. She alleged that Ms Fearon and Mr Ratel had personally subjected her to detriments and were therefore individually liable under the whistleblowing provisions of the Employment Rights Act 1996.

Following a preliminary hearing, the Employment Tribunal held that it only had jurisdiction to hear the claim against the FCO. It ruled that EULEX had no domestic legal personality; the Tribunal had no territorial jurisdiction over the Head of EULEX, who was an Italian national; and Ms Bamieh’s FCO co-workers were not domiciled or based in Great Britain so did not come within the scope of the Employment Rights Act 1996. Ms Bamieh appealed to the EAT.

The EAT dismissed the appeal in relation to EULEX and its Head, but allowed the appeal in relation to the FCO employees. It ruled that the Tribunal had been wrong to treat the absence of a base in Great Britain as the conclusive factor and should have followed the principles set out in Lawson v Serco for determining whether an overseas worker can claim against their employer in an Employment Tribunal. The key question was whether the connection with Great Britain and British employment law was sufficiently strong. This involved considering all relevant facts and circumstances, including where the work was carried out; the choice of law in the worker’s contract; how the employment relationship was managed from an operational and HR perspective; where the worker was paid and in what currency; and where the worker was recruited and based.

The EAT concluded that, despite being based in Kosovo, each of Ms Bamieh’s co-workers still had a sufficiently strong connection with Great Britain and British employment law for the claim to be brought in the Employment Tribunal. For example, they were working under contracts with the FCO which were governed by English law; they were paid by the FCO; any issues relating to discipline or dismissal were under the FCO’s control, and they would have expected to benefit from protection under British employment law themselves.

The EAT’s decision in this case confirms that the Lawson v Serco test also applies to individual respondents in whistleblowing claims who are based overseas. This means that a Tribunal must consider all surrounding facts and circumstances in order to establish whether there is a sufficiently strong connection to Great Britain.

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