News - Territorial jurisdiction in whistle blowing claims brought against co-workers

Employment & Discrimination - Ben Collins QC, Spencer Keen, Rosalie Snocken

FCO v Bamieh [2019] EWCA Civ 803

In Foreign and Commonwealth Office and others v Bamieh [2019] EWCA Civ 803 the Court of Appeal considered for the first time the question of the territorial jurisdiction of the Employment Tribunal in relation to whistle blowing claims against co-workers.

Ben Collins QC and Penelope Nevill appeared for the successful FCO. Spencer Keen and Rosalie Snocken appeared for the successful co-workers.

The introduction of co-worker liability for whistle blowing detriment was brought about by section 47B(1A) of the Employment Rights Act 1996 in order to fill the lacuna identified in Fecitt v NHS Manchester [2012] ICR 372. Although its principal aim may have been to ensure the vicarious liability of the employer for acts of co-workers, it enables free-standing claims to be brought in addition to or instead of claims against employers. The importance of such claims was highlighted by the decision of the Court of Appeal in Timis v Osipov [2019] IRLR 52 that individuals could be jointly and severally liable with employers.

In this case Ms Bamieh alleged that she had been subjected to detriments by co-workers while working as a secondee of the FCO to an international “rule of law” mission in Kosovo. One of the questions which arose for the tribunal was whether it had jurisdiction given that all the relevant events took place overseas.

The extraterritorial jurisdiction of the ET has been the subject of repeated appellate consideration, starting with the seminal judgment of Lord Hoffmann in Lawson v Serco [2006] ICR 250 and in a number of cases thereafter, most recently British Council v Jeffery [2019] IRLR 123. In any case, the question is whether Parliament intended that the employment would be governed by British employment law, notwithstanding that the place of employment was overseas. The starting point is that it will be taken not to have intended British employment law to apply to employment outside Great Britain, but there may be “exceptional cases where there are factors which pull sufficiently strongly in the opposite direction to overcome the territorial pull of the place of work and justify the conclusion that Parliament must have intended the employment to be governed by British employment legislation” (Jeffery at para 2).

The usual approach is to ask whether the employment relationship is so much more strongly connected with British employment law than any other system of law (Duncombe v Secretary of State for Children, Schools and Families (no. 2) [2011] ICR 1312; Ravat v Halliburton Manufacturing & Services Ltd [2012] ICR 389. That approach is understandable, albeit often difficult to apply to a given situation; but is it the right approach where the claim does not arise from the “employment relationship” at all? In a co-worker case the important relationship might be said to be between the co-workers rather than between the employer and employee.

Ms Bamieh argued that the proper test remained that set out in Duncombe and Ravat. Both co-workers owed their status and relationship to the fact that they were employed by the same employer. Given that the employer was an emanation of the UK state and they had been posted overseas for the purposes of the employer, it was their connection between their respective employment relationships (with the FCO) and British employment law which fell to be considered.

The Court of Appeal disagreed. It accepted submissions made by the FCO and co-workers that it was necessary to assess the connection between the co-worker (not employment) relationships and British employment law. When it did so, it found that there were stronger connections with both EU and Kosovo law. It noted in particular that there is little international consensus on the appropriate extent of and mechanisms for protection for whistle blowers. The tribunal therefore lacked jurisdiction.

The Court further underscored the proposition, derived from Dhunna v Creditsights [2015] ICR 105, that the relative merits of the competing systems are irrelevant: “it is the strength of the connection which matters – not the strength of the protection”.

The effect of the decision, therefore, is that where a whistle blowing claim is brought against a co-worker in respect of work overseas, the ET will have jurisdiction where the connection between the co-worker relationship and British employment law is sufficiently strong to displace the presumption that the tribunal will have jurisdiction only over work in Great Britain. As ever, the application of that test is bound to give rise to difficult questions, as it did here.

The decision is long and complex, touching also on issues relating to the functioning of EU institutions, remedies in EU law and the operation of the Rome II Regulation. This brief summary cannot do it justice – it can be read in full at: https://www.bailii.org/ew/cases/EWCA/Civ/2019/803.html

A decision is awaited on Ms Bamieh’s application to appeal to the Supreme Court.

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