For the first time, the appeal court has considered whether an employee can bring a whistleblowing detriment claim against her co-workers in the employment tribunal where the detriment happened outside of Great Britain (GB).
In the Employment Appeal Tribunal’s (EAT) 19 January 2018 decision in the case of Bamieh v EULEX Kosovo and Ors, the appeal judge ruled that in exceptional circumstances an employee can bring such a whistleblowing claim.
Maria Bamieh, an employee of the Foreign and Commonwealth Office (FCO), was seconded to work as an international prosecutor in Kosovo, arranged by the Council of the European Union, EULEX. She was initially directly employed by the UN Mission in Kosovo, after the western Balkans war, when the UN Security Council sought to help the country reach self-government.
Following UN withdrawal in December 2007, the EU set up EULEX Kosovo. From November 2008, Bamieh continued her work there as an FCO employee seconded to EULEX on annually renewable contracts, with FCO-seconded colleagues Mr Ratel and Ms Fearon.
After her annual contract was not renewed in November 2014, Bamieh brought whistleblowing claims in the employment tribunal against the FCO, EULEX and her co-workers. She claimed under the Employment Rights Act 1996 that Ratel and Fearon had subjected her to unlawful detriment by a investigation into her conduct and suggestions she be suspended because of her protected disclosures.
Tribunal judge Wade, in a July 2016 judgment, held that there was no English jurisdiction to hear any of Bamieh’s claims, other than against the FCO, and struck out her other claims. She said both Ratel and Fearon worked in Kosovo, without having spent any significant periods in the UK in recent years.
She also found that the tribunal lacked territorial jurisdiction over acts done by EULEX or the head of the mission, and the FCO had no control over or relationship with EULEX, though it seconded staff. The tribunal lacked territorial jurisdiction over her whistleblowing claims against Ratel and Fearon.
Bamieh appealed the finding before the EAT, alleging at an October 2016 hearing that the tribunal had erred on five grounds.
EAT Judge Simler ruled that in January that the Employment Rights Act had no application outside GB – unless there is a sufficiently strong connection with GB and British employment law. In this case, there was a sufficiently strong link between Ratel and Fearon with GB and British employment law.
The respondents worked under employment contracts with the UK government, governed by English law. They represented the government and were bound by the Official Secrets Act. They were paid by the FCO and were under its authority. EULEX also confirmed that GB was responsible for claims linked to Ratel and Fearon’s secondments.
In reality, no other system of law would be available to hear Bamieh’s claims, Simler found.
She noted that seconded staff members remained under their sending state’s authority throughout their secondment.
Bamieh’s first contract with the FCO was a one-year fixed-term contract from November 2008, where she was “employed by the FCO and seconded to EULEX” under English law, her permanent home was London, and she only lived in Kosovo in temporary lodging.
The tribunal therefore could hear Bamieh’s whistleblowing claim against Ratel and Fearon: “There is extraterritorial jurisdiction under the Employment Rights Act in respect of the whistleblowing detriment claims pursued by the claimant against Ms Fearon and Mr Ratel.” Simler noted that the particular combination of factors made this case exceptional.
Employment tribunals must ascertain whether on the facts there is a sufficiently strong connection with GB and British employment law than with another legal system. While this was an exceptional case, similar situations may often arise where companies or organisations second employees for a period abroad or from elsewhere to GB.
Anne Pritam, partner in law firm Stephenson Harwood’s employment group, told People Management that the case is significant to employers because it takes the principles of Lawson and Duncombe a step further, and considers the extent and sufficiency of a respondent's connection with GB – applying the established claimant side test to respondents.
The case reminds employers that their employees working abroad “represent the employer not just as a brand and a business – but also in the context of their ethics and values”, Pritam said.
“In an era of increased scrutiny of the ethical behaviour of global entities, international employers should take note that their employees seconded abroad may be out of sight but they should not be out of mind. How they behave in the face of challenging disclosures of malpractice by their colleagues may well come home to roost in the English courts."
Following this case, the same test could be applied to determine if an employment tribunal can hear a whistleblowing claim brought against the claimant's co-workers working outside GB.