Foreign and Commonwealth Office & Ors v Bamieh

The co-worker whistleblowing protections in Employment Rights Act 1996 sections 47B(1A) and 48(1A) have implied territorial limits. Where the alleged detriment occurs abroad, the required connection with Great Britain and British employment law must be assessed by reference to the factual reality of the relationship between the claimant and the alleged co-worker, not merely their separate contracts with a common British employer.

An international mission is not thereby a British enclave. Where the relevant working relationship arises from roles performed for that mission, and is more closely connected with its governing or local law, the provisions do not apply extraterritorially.

The respondent, an FCO-employed prosecutor, was seconded to the EU Rule of Law Mission in Kosovo (EULEX). She alleged that two fellow FCO secondees subjected her to detriments because she made protected disclosures. Her claims against the FCO itself were not jurisdictionally disputed; this appeal concerned claims against the co-workers under Employment Rights Act 1996 section 47B(1A).

The Employment Tribunal declined jurisdiction over the co-workers. The Employment Appeal Tribunal allowed the respondent’s appeal, holding that their FCO employment, English-law contracts and the character of EULEX gave sufficiently strong connections with British employment law. The FCO and the co-workers appealed. The central issue was whether the co-worker whistleblowing provisions applied extraterritorially to their EULEX working relationship.

1. Appeal allowed unanimously. The court reversed the Employment Appeal Tribunal and restored the Employment Tribunal’s decision. There was no extraterritorial jurisdiction under Employment Rights Act 1996 sections 47B(1A) and 48(1A) over the respondent’s whistleblowing detriment claims against the co-workers.

2. The territorial principles developed for unfair-dismissal claims under section 94(1), including Lawson v Serco [2006] UKHL 3 and Ravat v Halliburton Manufacturing and Services Ltd [2012] UKSC 1, were relevant by analogy. The statute is ordinarily territorial. Its application to work abroad is exceptional and requires a sufficiently strong connection with Great Britain and British employment law.

3. For section 47B(1A), the common employer was necessary but not sufficient. The required inquiry concerned the factual reality of the co-worker relationship. Here, the parties had never worked together in the United Kingdom. They were separately seconded and encountered each other solely through their EULEX functions. Their common FCO employment was therefore happenstance, while the centre of gravity of the relevant relationship lay in the theatre-level performance of their international-mission roles.

4. EULEX was an international, not British, mission. It was not a British enclave comparable to the setting in Duncombe v Secretary of State for Schools [2011] UKSC 36. The combination of overseas work and the international setting meant that the relationship was outside the legislative grasp of section 47B(1A).

5. The conclusion was reinforced by Rome II. The alleged wrong was non-contractual. The relevant relationship did not make English law manifestly more closely connected than the law otherwise indicated. It was more closely connected with EU law, or alternatively Kosovan law. The adequacy of protection under those systems was irrelevant: the inquiry concerned the strength of the connection, not comparative remedies.

6. Article 10.2 of the Council Joint Action attributed responsibility to the seconding state for claims linked to a secondment. It neither conferred Employment Tribunal jurisdiction nor governed theatre-level relationships between EULEX staff. Applying divergent national whistleblowing regimes within the mission would also risk impairing its orderly operation.

• Court of Appeal (Civil Division): Allowed the FCO and co-workers’ appeals, reversed the EAT, and restored the ET’s conclusion that it lacked jurisdiction over the co-worker claims.
• Employment Appeal Tribunal: In UKEAT/0268/16/RN, allowed the respondent’s appeal and held that the whistleblowing detriment claims against the co-workers fell within the territorial scope of the Employment Rights Act 1996.
• Employment Tribunal: On 14 June 2016, held that it had no jurisdiction to determine the claims against the co-workers.