Bamieh v EULEX (Kosovo) and others UKEAT/0268/16

Why care?

If workers makes whistleblowing claims they have the right not to be subjected to a detriment either by their employer or co-workers. Employment tribunal claims can be brought against the employer or their workers. In this case the issue was that the co-workers were seconded overseas by a UK employer. The tribunal had to consider whether it had jurisdiction to hear the case by considering the territorial effect of the legislation which has been the subject of various cases. This included whether the connection between the worker’s employment and Great Britain and with British employment law was sufficiently strong for an employee to have a claim in Great Britain.

The case

Ms Bamieh was employed by the Foreign and Commonwealth Office (FCO) under a series of annual fixed-term contracts governed by English law. Under them she was seconded to EULEX in Kosovo, an entity set up by the EU to assist with the country achieving self-government following the war in the Balkans. Under her secondment she remained under the authority of the FCO. When her last contract was not renewed she believed that this was because she had made some protected disclosures. She brought employment claims against the FCO and also against two of its employees who she alleged had personally subjected her to detriments. She also brought claims against EULEX and its Head of Mission.

An employment judge held at a preliminary hearing that a tribunal only had jurisdiction to hear the claim against Ms Bamieh’s employer, the FCO. Neither EULEX nor its Head of Mission acted as agents of the FCO so were not liable and the FCO employees were not domiciled in the UK or based there for work purposes and in the judge’s view the “stronger connections” test for territorial jurisdiction only applies to claimants and not respondents.

Ms Bamieh appealed to the EAT which dismissed the appeal against EULEX and its Head of Mission but allowed the appeal against the FCO employees. Although they were not based in Great Britain they had a sufficiently strong connection with Great Britain and British employment law because they were working under contracts with the UK Government, retained their British citizenship and passports and their contracts were governed by English law. Matters of discipline and dismissal were all within the FCO’s control.

However the EAT did agree with the employment tribunal that EULEX could not be sued as it did not have legal personality and even if it did it was based only in Kosovo and so outside the jurisdiction of British tribunals. Neither it, nor the Head of Mission was Ms Bamieh’s employer. He was also personally outside of territorial scope as he was an Italian with no links to Great Britain or British employment law.

What to take away

This case has extended the territorial jurisdiction test in Lawson v Serco [2006] UKHL 3 to include individual, and not just corporate employer, respondents if they have sufficient connections to Great Britain in the same way as assessing whether a claimant worker based abroad comes within scope.