Whistleblowing: Can claims be brought against co-workers under English law where detriment is suffered abroad?

The Employment Appeal Tribunal in England has found that in exceptional circumstances an employee can bring a whistleblowing claim against her co-workers in the Employment Tribunal, even where the actions complained about took place outside of Great Britain, in its recent decision in Bamieh v EULEX Kosovo and ors.

Ms Bamieh was an employee of the Foreign and Commonwealth Office (the FCO) who was seconded to a mission which had been set up by the Council of the European Union, EULEX, to work as an international prosecutor in Kosovo. Her co-workers, Mr Ratel and Ms Fearon were also seconded by the FCO to work for EULEX in Kosovo. After Ms Bamieh’s employment contract was not renewed, she brought claims in the Employment Tribunal, including a claim under the Employment Rights Act 1996 (the ERA) against Mr Ratal and Ms Fearon alleging that they had subjected her to unlawful detriments (i.e. investigations into her conduct and recommending her suspension) because she had made whistleblowing disclosures. Mr Ratal and Ms Fearon both worked outside of the UK (in Kosovo) and had spent limited time in the UK in recent years.

In considering the case, the Employment Appeal Tribunal (the EAT) recognised that the starting point is that the ERA has no application to work outside of Great Britain, unless there is a sufficiently strong connection with Great Britain and British employment law.

The EAT found that there was a sufficiently strong connection between Mr Ratel and Ms Fearon with Great Britain and British employment law in this case, as:

• they were working at all material times under employment contracts with the UK Government;
• their contracts were governed by English law and Mr Ratel and Ms Fearon would have expected the ERA to apply to them;
• they were treated differently from locally employed members of staff, in particular they were paid by the FCO and remained under the authority of the FCO; and
• the joint action of the Council of the European Union that set up EULEX made clear that Great Britain was responsible for claims linked to the secondments of Mr Ratel and Ms Fearon.

In reaching its conclusion that the Employment Tribunal did have territorial jurisdiction to hear claims against Mr Ratel and Ms Fearon, the EAT emphasised that this was an exceptional case with a special combination of factors and, in reality, no other system of law would be available to hear Ms Bamieh’s claims. This is an interesting development, particularly given that the EAT showed some appetite last year for making co-workers jointly liable for damages in whistleblowing cases.