The Territorial Reach of the Whistleblowing Claims: Bamieh v EULEX Kosovo et al, EAT, 19 January 2018

Sections 47B(1A) and 48(1A) Employment Rights Act 1996 gives a right to a worker to bring a whistleblowing claim against a co-worker who has subjected her to a detriment because she has made a protected disclosure – provided territorial jurisdiction is made out.

The Facts

Ms Bamieh was employed by the Foreign and Commonwealth Office (‘FCO’) on a series of contracts, governed under English law, and seconded as a prosecutor to EULEX, a Rule of Law Mission, in Kosovo Her last contract was not renewed, and Ms Bamieh argued that this was because of protected disclosures she had made. The FCO contended that the non-renewal was due to the Mission shrinking. Ms Bamieh brought a whistleblowing complaint against the FCO, EULEX and co-workers, two of whom had also been seconded by the FCO to Kosovo. Ms Bamieh alleged one of the FCO employees had commenced a series of investigations into her conduct and the other had recommended her suspension without investigation.

Extraterritorial jurisdiction was accepted by the FCO, but not by the other Respondents. At a preliminary hearing, the ET agreed with the other Respondents. In relation to the FCO employees the ET held that they did not live in the UK and were not based there for work purposes.

The EAT Judgment

Simler J overturned the ET’s conclusion in relation to the two FCO employees (but not EULEX and another Respondent). Building on the principles set out in Lawson v Serco Ltd [2006] ICR 250 and Duncombe v Secretary of State for Children Schools and Families (No. 2) [2011] ICR 495, territorial jurisdiction was made out on the facts. The territorial reach issue (normally applied to Claimants, but applied here by analogy to Respondents) required an assessment of the extent and sufficiency of the co-workers’ connection with Great Britain. Relevant to this assessment was the fact that their employment was with and they were representatives of the UK Government; they were employed under contracts governed by English law; they were treated differently from locally employed members of staff and were under the authority of the FCO. Just like Ms Bamieh’s, her co-workers were employed by the UK Government to discharge the UK’s obligations on the Mission.


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