FCO and others v Bamieh

The Court of Appeal considered whether the whistleblowing protection in ss.47B(1A) and 48(1A) of the Employment Rights Act 1996 applied extraterritorially to claims between coworkers seconded by the Foreign and Commonwealth Office to the EU Rule of Law Mission in Kosovo (EULEX). The court applied the established "sufficiently strong connection" test derived from authority on s.94(1) ERA and concluded that the relevant relationship was the theatre-level EULEX relationship, not the parties' common employment by the FCO. The panel held that EULEX was an international (EU) mission with closer connections to EU law, and, alternatively, Kosovan law, so that Parliament’s legislative "grasp" in ss.47B(1A) and 48(1A) did not extend to the coworkers' conduct in Kosovo. The court therefore allowed the appeal, reversed the EAT, and restored the Employment Tribunal's decision that there was no extraterritorial jurisdiction in respect of the coworker detriment claims.

Background and parties: The respondent (Ms Bamieh), an FCO employee seconded to EULEX as a prosecutor, brought whistleblowing detriment claims under ss.47B(1A) and 48(1A) ERA against two FCO secondees who worked with her in Kosovo and against the FCO. The Employment Tribunal held it had no jurisdiction in respect of the coworker respondents; the Employment Appeal Tribunal allowed the claimant's appeal, finding extraterritorial application of the whistleblowing provisions. The FCO and the two coworkers appealed to the Court of Appeal.

Nature of the claim: Complaint that the coworkers subjected the respondent to detriment for making protected disclosures and that the FCO might be vicariously liable.

Issues framed:

• Whether ss.47B(1A) and 48(1A) ERA apply extraterritorially to co-worker detriment claims between FCO secondees operating within EULEX;
• What is the correct focus for the territorial "connection" analysis (the EULEX theatre-level coworker relationship or the parties' common FCO employment)?
• Whether other systems of law (EU law or Kosovan law) or practical administration of EULEX preclude application of the ERA.

Court’s reasoning and conclusions: The court applied the established territoriality principles developed in Lawson v Serco and subsequent authority: the ERA is prima facie territorial but may apply abroad where there is a sufficiently strong connection with Great Britain and British employment law. The key was identifying the proper relationship to be tested. The court concluded the relevant relationship was the theatre-level relationship within EULEX (an international EU mission operating in Kosovo) rather than merely the fact that the individuals had separate FCO contracts. EULEX’s rules, chain of command, disciplinary scheme, and the Joint Action establishing the mission pointed to EU legal structures and a closer connection to EU law (and, as a fallback, Kosovan law) for theatre-level matters. Rome II choice-of-law analysis reinforced that the non-contractual tort (detriment) pointed to Kosovo or EU connections rather than English law. Practical difficulties and risks of imposing conflicting national whistleblowing regimes on an international mission, together with the absence of an international consensus on coworker liability for whistleblowing, counseled against extending the ERA extraterritorially. Art.10.2 of the Joint Action was held to attribute responsibility to the seconding state but not to confer Employment Tribunal jurisdiction over theatre-level coworker disputes. The court therefore allowed the appeal and restored the ET’s decision.

Appeal allowed. The Court of Appeal held that ss.47B(1A) and 48(1A) ERA do not apply extraterritorially to the coworker detriment claims between FCO secondees in EULEX because the relevant relationship was the theatre-level relationship within an international EU mission with closer connections to EU law (and alternatively Kosovan law) than to British employment law; therefore the requisite "sufficiently strong connection" to Great Britain was not established and there was no jurisdiction under the ERA.

Employment Tribunal (EJ Wade) judgment dated 14 June 2016: held no jurisdiction in respect of the coworker respondents. Employment Appeal Tribunal (Simler P) judgment dated 19 January 2018: allowed claimant's appeal, held extraterritorial application of ss.47B(1A) and 48(1A). Court of Appeal [2019] EWCA Civ 803: allowed FCO and coworkers' appeal, reversed EAT and restored ET decision.