The Court of Appeal has overturned an EAT decision that held that a Tribunal had jurisdiction to hear a whistleblowing detriment claim brought by a claimant against her overseas colleagues. On the facts here, given that the Claimant and her colleagues had only ever worked together in Kosovo through their secondments to an international mission, the necessary connection with Great Britain had not been satisfied so as to bring the overseas colleagues within the reach of UK whistleblowing law.
The Claimant was employed by the Foreign and Commonwealth Office (FCO) and seconded to an EU Mission (EULEX) in Kosovo. She brought whistleblowing claims in a UK Employment Tribunal against, the FCO and two FCO colleagues who were also on secondment to EULEX.
The FCO conceded that it was within the Tribunal's jurisdiction but contested the extent of its vicarious liability for actions of the two FCO colleagues whilst in Kosovo. The FCO colleagues denied that their actions whilst in Kosovo could fall within the territorial reach of the UK Tribunal. The Tribunal found that only the FCO was within the territorial scope of the whistleblowing provisions.
On appeal, the EAT ruled that the guidelines in Lawson v Serco  and Ravat v Halliburton  should apply to determine whether the FCO colleagues could be personally liable for subjecting the Claimant to a detriment contrary to the UK whistleblowing provisions. Essentially, if the employees had sufficient connection with the UK to be protected by UK legislation, they could also be personally liable. (see our previous alert on the EAT decision)
The Court of Appeal overturned the EAT's decision. The Court stated that the fact that the Claimant and the FCO co-workers had the FCO as their common employer was not sufficient by itself to confer jurisdiction on the Tribunal in respect of the whistleblowing claim against the co-workers. The focus of the test is not whether the co-workers have sufficiently strong connections with the UK but the relationship of the Claimant and the co-workers and its connection with the UK. On the facts here, the Court found that their common employment by the FCO was little more than happenstance, given that:
- The Claimant and the FCO colleagues had never worked together in the UK; they worked together solely in Kosovo;
- They were seconded to EULEX separately; and
- They were only brought into contact through their performance of their respective EULEX roles and were to act in the "sole interest of the mission".
The co-worker relationship had a closer connection with EU law, or alternatively Kosovan law, and the necessary connection with British law had not been satisfied.
The Court considered that its conclusion was supported by the Rome Convention on the Law applicable to non-contractual obligations 2007 ("Rome II"). Article 4 of Rome II provides that the law applicable to a non-contractual obligation arising out of a tort shall be the country in which the damage occurs (here Kosovo), unless, amongst other things, it is clear from all the circumstances of the case that the tort is manifestly more closely connected with another country.
The Court also accepted the FCO's arguments on public policy that if the Tribunal had jurisdiction to hear the claims against the FCO colleagues, for which it may be vicariously liable, this would expose it to matters over which it had no control, which would have obvious ramifications for UK secondees to other international missions from the FCO and other government departments and agencies.
We believe that this is the first reported decision on when colleagues (as opposed to claimants) are within the territorial scope of UK whistleblowing provisions.
The Court of Appeal has confirmed that the assessment of whether a Claimant can bring a claim against an individual respondent based overseas will depend on whether the relationship between him/her and that individual has a sufficiently strong connection with British employment law, rather than their relationship with the employer. The test is fact specific. The facts were fairly unusual in this case and it is not clear how the test would be applied in the more common situation where a UK based employee wishes to bring a claim against an overseas co-worker. The Court also did not need to determine whether the FCO could be vicariously liable for the acts of the overseas co-workers even though they are not personally liable. That will be considered at a future hearing.