Bamieh v Eulex (Kosovo) & Ors

For Employment Rights Act 1996 claims arising from work abroad, territorial reach depends on whether the employment has sufficiently strong connections with Great Britain and British employment law. The inquiry is one of fact and degree. A foreign base is important but not conclusive.

The same approach applies by analogy to statutory whistleblowing claims against a co-worker. Where workers were employed and paid by the United Kingdom Government under English-law contracts, remained subject to its disciplinary authority, and worked in an international mission unconnected with another legal system, the connection may be exceptionally strong.

A CFSP mission established abroad did not acquire domestic legal personality merely through the relevant Joint Action. Convention and Charter rights did not create a domestic cause of action against the mission.

The claimant was employed by the Foreign and Commonwealth Office and seconded as an international prosecutor to EULEX Kosovo. When her fixed-term employment was not renewed, she brought whistleblowing detriment and unfair dismissal claims against the FCO, EULEX and several individuals.

The Employment Tribunal struck out every claim except those against the FCO. It held, among other matters, that EULEX lacked domestic legal personality, that there was no territorial jurisdiction over EULEX or the individual respondents, and that the Convention and EU Charter did not assist.

On appeal, the central issues included EULEX's legal personality, the territorial reach of the Employment Rights Act 1996 to FCO secondees working in Kosovo, and whether human-rights instruments extended the available remedies.

1. Appeal allowed in part. The appeal succeeded only as to the whistleblowing detriment claims against Ms Fearon and Mr Ratel. Those claims could proceed with the claims against the FCO. The remaining grounds failed.
2. EULEX had no domestic legal personality enabling it to be sued in England. A treaty or CFSP Joint Action does not alter domestic law without domestic implementation. Article 15a of the Joint Action gave EULEX limited capacity for purposes necessary to implement the mission. It did not require the United Kingdom to confer general domestic personality or make EULEX answerable for claims by FCO secondees. Article 10(2) instead allocated responsibility for claims linked to a secondment to the sending state or institution.
3. The Tribunal made no error in concluding that EULEX and its Head of Mission were not the claimant's employer or the FCO's agents. The secondment arrangements left critical employer responsibilities, including discipline and non-renewal, with the FCO.
4. For claims against the two FCO co-workers under section 47B(1A), the Tribunal should have applied by analogy the ordinary extraterritoriality inquiry. It should have assessed all connections with Great Britain and British employment law, rather than treating an overseas base as conclusive. Their English-law FCO contracts, United Kingdom Government employment, continuing FCO authority and work in an international enclave made this an exceptional case. The only available conclusion was that jurisdiction existed.
5. The Convention and Charter did not extend jurisdiction over EULEX. There was no sufficient factual basis for state-agent authority or control over Kosovo or the claimant that could engage Convention obligations outside Convention territory.

• Employment Appeal Tribunal: appeal allowed only in respect of territorial jurisdiction over the whistleblowing detriment claims against Ms Fearon and Mr Ratel.
• Employment Tribunal: judgment promulgated on 16 June 2016. Claims against respondents other than the FCO were struck out for want of jurisdiction.