In the recent case of Bamieh v EULEX Kosovo and ors, the Employment Appeal Tribunal (“EAT”) found that an employee could bring whistleblowing detriment claims against co-workers for events which allegedly took place whilst on secondment in Kosovo.
The Claimant and two co-workers had been seconded to EULEX in Kosovo on a “rule of law mission” designed to achieve international standards following the Balkan wars. The Claimant was employed by the Foreign and Commonwealth Office (“FCO”) under a fixed-term contract and whilst on secondment, remained under the authority of her sending state. She alleged that after making protected disclosures, the FCO did not renew her fixed-term contract. The Claimant brought whistleblowing claims against the FCO, EULEX and the two co-workers who were on secondment with her.
At first instance, the tribunal held that it only had jurisdiction to hear the claims against the FCO as EULEX had no domestic legal personality and the co-worker respondents were not domiciled in the UK. The Claimant appealed to the EAT.
On appeal, the EAT found that the tribunal had been wrong to treat the fact that the secondees had not been based in Great Britain as a conclusive factor on the issue of jurisdiction. The EAT confirmed that this issue can be overcome if the co-workers’ connection with Great Britain and British employment law was sufficiently strong. This approach echoes the leading case in this area (Lawson v Serco (2006)) and the cases which followed. In summary, the case law in this area directs tribunals to consider the following factors when faced with jurisdiction issues:
- Where was the worker recruited?
- Where was the work carried out and where was the worker based?
- What was the choice of law in the worker’s contract?
- How was the employment relationship managed from an operational and HR perspective?
- Where did the worker reside?
- Where was the worker paid and in what currency?
As whistleblowing case law evolves, more and more people are likely to be caught by the regime so it would be wise to ensure policies and training reminds workers of potential personal liability.