Whistleblowing: Does the UK tribunal have jurisdiction for seconded co-workers on an EU mission?

In Foreign & Commonwealth Office & Others v Bamieh [2019] EWCA Civ 803 the question before an employment tribunal was - do the whistleblowing provisions contained in the Employment Rights Act 1996 apply extraterritorially in respect of a claim between co-workers seconded to the international EU Rule of Law Mission in Kosovo ("EULEX"), in circumstances where each was (separately) employed by the Foreign and Commonwealth Office ("FCO")? The background to this case was: after the war in the Western Balkans, the UN Security Council deployed international personnel in Kosovo to help the country reach international standards and to achieve self-government. After the UN left, EULEX was set up in Kosovo manned by seconded personnel from EU member states – from the UK they were seconded from the FCO. The Respondent brought claims in the tribunal against the FCO and the co-workers, based on alleged detrimental treatment for whistleblowing (she had made protected disclosures). The co-workers were themselves FCO employees, seconded to EULEX.

The tribunal answered this question by saying no, the provisions didn’t apply as they weren’t within the territorial scope of the tribunal. The EAT overturned this decision and said yes they were, because answering the question of territorial application requires an assessment of the sufficiency of the connections between individual Respondent and Great Britain. Since each was a UK-employee able to sue or be sued by their employer in accordance with the law of England and Wales, claims between co-workers were within scope.

The Court of Appeal, however, agreed with the tribunal. Whilst there was a common employer among them which satisfied the relevance of s.47B(1A) ERA, the Court of Appeal found that the facts showed a different picture. By working in the EU mission in Kosovo, there was actually more of an influence of Kosovan law or EU law, rather than UK law. Lord Justice Gross found that in such a situation, the focus must be on which legal system was more relevant to the relationship between the parties.  Leave to appeal to the Supreme Court has been sought.

Published: 16 May 2019

Article Sections: Whistleblowing | Tribunal Proceedings

Tags: whistleblowing, jurisdiction

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