The Public Interest Disclosure Act 1998 (PIDA) has effectively added another form of discrimination into the existing characteristics afforded protection under the Equality Act 2010 and its predecessors – namely, whistleblower status. Since the PIDA’s introduction, UK businesses have faced the reality that employees at certain levels of their hierarchy are more likely to be able to formulate detriment claims after raising issues about the business. This is particularly so for employees responsible for, or operating in, finance, regulation, health and safety and compliance.
Employees bringing unfair dismissal claims, and particularly those with fewer than two years’ service, increasingly seek to rely on whistleblowing detriment, given its status as an automatically unfair reason for dismissal, disposing of the need to satisfy the usual qualifying period of service to bring a claim and the usual cap on compensation awardable.
Accordingly, employers must be able to show that any purportedly detrimental treatment of an employee was carried out for good business reasons, unrelated to any whistleblowing subject matter. In practice, to do this effectively employers must anticipate such claims at an early stage, and factor in their possibility when planning particular actions or reorganisations.
In Richard Bowley’s whistleblowing-related unfair dismissal claim, Bowley had worked for global mining company Rio Tinto between 2017 and 2019, and claimed the firm was aware of problems with a key project to expand a copper mine in the Gobi Desert several months before it made its investors aware. However, perhaps the more interesting aspect of this case for companies with an international scope is that Bowley spent time working outside the UK. Here, the question is whether an employee’s work and employment are sufficiently linked to the UK so as to give it jurisdiction.
In Lawson v Serco, the Court of Appeal divided employees into a number of categories regarding potential jurisdiction in relation to unfair dismissal, holding as follows:
- A peripatetic (travelling) employee’s base should be treated as their place of employment even though they may spend weeks or months working overseas.
- The ability of an employee ordinarily working in the UK to bring a claim depends on whether they were working in the UK at the point of dismissal. This requires an analysis of the factual relationship rather than solely relying on any place of work specified in the employment contract. However, the latter could be of assistance in determining whether an employee’s presence in the UK at the time of dismissal is merely a ‘casual’ visit only.
- For employees working and based abroad, the fact that they were recruited in the UK by a UK employer will not be sufficient to bring them under the UK jurisdiction. An additional element – for example, working for what amounts to a UK extra-territorial political or social enclave, or being posted abroad by a UK employer for the purposes of a business carried on in the UK – will be required.
Employees who do not fit into these categories but can prove stronger connections to the UK than with the country of work may also be covered. In Hexagon Sociedad Anonima v Hepburn, the Scottish Employment Appeal Tribunal (EAT) held that an employee whose contract stated that his employment was governed by and under the exclusive jurisdiction of the laws of Scotland, but who worked offshore in the Gulf of Guinea, could bring a claim under Scottish law. In rejecting the company’s argument that jurisdiction should be allocated to New Guinea, the EAT held that it would be inconsistent and disingenuous for the company to draft and agree to a term, only to disown it when a claim was brought.
Many cases addressing jurisdiction are fact-specific. However, jurisdiction remains a first potential stumbling block for employees wishing to bring a claim. Employers should therefore take early steps in drafting contracts and working practices to achieve their jurisdictional aims. This is perhaps even more pertinent in a post-Brexit world.
Brian Gegg is a partner and Asten Hawkes a solicitor at BDB Pitmans