The EAT has held that whistleblowing claims can be brought against co-workers who are based abroad if the co-workers have a sufficiently strong connection to Great Britain
Under whistleblowing legislation, workers have the right not to be subjected to detriment by their employer or by another worker for having made a protected disclosure. Workers can bring detriment claims against their employer and directly against the co-workers, who can be personally liable for detriment claims.
Under unfair dismissal case law, overseas employees will only have the right to claim unfair dismissal if they have an overwhelmingly closer connection with Great Britain and with British employment law than with any other systems of law. Overseas workers with such a connection can include, depending on the facts of each case, peripatetic employees with a base in Great Britain, expatriate employees of a British employer, those working in a British “enclave”, and anyone else with an “equally strong connection with Great Britain”.
Unfair dismissal rights and whistleblowing rights are both governed by the Employment Rights Act 1996.
Ms Bamieh was employed by the Foreign and Commonwealth Office (FCO) under a series of annual fixed term contracts governed by English law. She was seconded to EULEX in Kosovo as an international prosecutor. EULEX is a “Rule of Law Mission” in Kosovo set up by the European Council, with the aim of assisting and supporting Kosovo's judicial authorities and law enforcement agencies. Many countries send personnel to EULEX, which has some responsibilities towards them, but the main responsibility for EULEX personnel remains with the home state. As a member of seconded staff, Ms Bamieh remained under the authority of the FCO, though required to follow out her duties following the Mission’s chain of command.
Ms Bamieh’s contract was not renewed, and she believed that this was because she was a whistleblower. She brought a claim in a UK employment tribunal, naming several respondents, including the FCO, EULEX and the Head of Mission, Mr Meucci. She also brought claims against Ms Fearon and Mr Ratel, colleagues of hers also employed by the FCO, who had spent limited time in the UK in recent years. She alleged that their actions in investigating her conduct and recommending her suspension were detriments that she had suffered because she had made whistleblowing disclosures.
The employment tribunal held that it only had the jurisdiction to hear Ms Bamieh’s claims against the FCO. Ms Bamieh appealed to the EAT.
The EAT allowed the appeal against the FCO employees, Ms Fearon and Mr Ratel.
In considering the appeal against these two employees, the EAT looked to case law about the territorial reach of unfair dismissal rights, which is also applicable to whistleblowing claims, as the rights are given by the same legislation. Whilst case law has always been about establishing how strong a connection an overseas claimant has with Great Britain, and not to whether the respondent has such a connection, the EAT believed the same test must apply. Accordingly, in deciding whether Ms Bamieh could bring claims against Ms Fearon and Mr Ratel, the employment tribunal should have considered whether Ms Fearon and Mr Ratel had a sufficiently strong connection with Great Britain and British employment law. Although they were not based in Great Britain, the following should have been taken into account by the tribunal:
They were working under contracts with the UK Government;
They were required to conduct themselves consistently with their position as government representatives;
They were bound by the terms of the Official Secrets Act 1989;
They were, and were required to be, UK passport holders;
Their contracts were governed by English law, and they would have expected to have the benefit of UK employment rights, such as unfair dismissal;
They were treated differently to local members of staff, being paid by the Foreign Office and remaining under its authority;
Disciplinary action against them would be exercised by the FCO, and the final decision to dismiss or suspend would be taken by the FCO; and
The EAT held that Ms Bamieh could, therefore, bring whistleblowing detriment claims against her FCO colleagues.
What does this mean for employers?
This case will be of relevance to UK employers who have employees regularly working outside the UK. It makes sense that, where a worker based abroad has a sufficient connection to Great Britain to allow them to bring unfair dismissal claims, claims that they have been subjected by a co-worker to whistleblowing detriment can be brought by them. Similar considerations would arguably apply if the individual were named as a respondent in discrimination proceedings in the UK.