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Whistleblowing: Territorial Jurisdiction

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Does an employment tribunal have jurisdiction to hear claims for whistleblowing detriment brought by a British worker seconded by the FCO to EULEX (a Kosovo-based EU mission) against fellow employees of the FCO also so seconded?

No, held the Court of Appeal in Foreign Office and others v Bamieh.

This is the first appellate case to consider how a territorial test should apply in respect of co-worker claims. The EAT, overturning the tribunal, had found that the claims were within territorial scope. The question of territoriality “required an assessment of the sufficiency of the connections between each individual Respondent and Great Britain.” Since each was a UK-employee able to sue or be sued by their employer in accordance with the law of England and Wales, claims between co-workers were within scope.

The Coourt of Appeal disagreed and restored the tribunal’s decision. The existence of a common employer was a necessary but not sufficient factor in a co-worker claim under s47B(1A). Instead, focus must be on which legal system has the greater pull on the relationship between the co-workers. Since their only dealings with each other were at theatre level of the EU mission in Kosovo there was a stronger pull to the law of Kosovo or EU law. The EAT’s interpretation would undermine the effective functioning of an international mission and affix vicarious liability on an employer unable to control the enclave overseas. This was supported by consideration of Art.4 Rome II: there was no “manifestly closer” connection to UK law than that of the state in which the (statutory) tort was said to have occurred, namely Kosovo.

Leave to appeal to the Supreme Court has been sought.