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Employment Law

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Veale Wasborough Vizards , 29 JAN 2018

Can Whistleblowing Claims Be Brought Against Co-workers Based Overseas?

Can Whistleblowing Claims Be Brought Against Co-workers Based Overseas?
Charlotte Rose
Veale Wasbrough Vizards

The recent case of Bamieh v EULEX Kosovo and ors considers not only questions of jurisdiction but also highlights the fact that whistleblowing claims can be brought against co-workers, as well as employer.

Section 47B(1A) of the Employment Rights Act 1996 (ERA) protects workers from suffering detriment by their co-workers in relation to whistleblowing claims. Where an employee succeeds in such a claim against a co-worker, the detriment is also treated as being done by the employer. The protection provided by this provision is, however, subject to the strength of the connection between the worker and the United Kingdom.

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Ms Bamieh was employed by the Foreign and Commonwealth Office (FCO) but was seconded to an organisation known as EULEX in Kosovo. EULEX ran a programme aimed at helping Kosovo following the war in the Balkans.

In 2014 Ms Bamieh's fixed term contract of employment (governed under English law), was not renewed. Ms Bamieh felt this was a detriment due to a number of protected disclosures she had made and as a result she brought a claim in an employment tribunal, naming numerous respondents. As well as FCO and EULEX, Ms Bamieh named two colleagues as respondents, F and R, on the basis they had personally subjected Ms Bamieh to detriments. F and R were also secondees from FCO based in Kosovo.

The Employment Tribunal (ET) held that it did not have the jurisdiction to hear the claim in relation to Ms Bamieh's co-workers. The ET based its decision on the fact that they did not live in the United Kingdom, nor were they based there for work purposes.

On appeal, the employment appeal tribunal (EAT), following the principles set out in Lawson v Serco Ltd, found that the ET has erred. The EAT noted that, whilst the absence of a base in the United Kingdom was very relevant, it should not be considered as a sole determining factor. The question is whether, taking all facts and circumstances into account, there is a sufficient connection to the Great Britain and British employment law. The EAT felt that, despite there being no territorial base in the United Kingdom, there was still sufficient connection with Britain and British employment law that the claim against F and R could be brought to an employment tribunal. The EAT found that the employment judge should have considered the fact that F and R were working under contracts with the UK Government, they were governed by English law and F and R would have expected to benefit from protection under the ERA themselves.

Best Practice

The decision in Bamieh perhaps doesn't come as a surprise given that it closely follows previous cases such as Lawson v Serco Ltd and Duncombe v Secretary of State for Children, Schools and Families. However it does highlight the fact that whistleblowing claims can be brought against co-workers as well as the employer and are not limited to those who are based in Great Britain.

When considering matters of jurisdiction, a tribunal will consider all the circumstances - and not just the physical base of the individuals or entities concerned - to establish whether there is a strong enough connection with the Great Britain and British employment law.