A tribunal or court can only hear a whistleblowing claim against a British employer from someone working outside Great Britain if there is a stronger connection with Great Britain and British employment law than with the country of work. In Foreign and Commonwealth Office v Bamieh, the Court of Appeal had to decide how that test applied where the claims were against an employee's co-workers, who also worked outside Great Britain. On the facts of the case, the employee's whistleblowing detriment claims could not proceed.

Ms Bamieh was employed by the Foreign and Commonwealth Office (FCO) and seconded to work at EULEX, an international organisation based in Kosovo. EULEX staff came from a number of different EU and non-EU states. When Ms Bamieh's contract to work at EULEX was not renewed she brought claims for automatic unfair dismissal and whistleblowing detriment against the FCO, which it was accepted that the tribunal had jurisdiction to hear. She also brought whistleblowing detriment claims against two co-workers, who were employed and seconded to EULEX by the FCO. (It is not clear from the decision in the case why she chose to proceed against the co-workers as well as the FCO; the FCO's involvement in this aspect of the case related to concerns about vicarious liability and potential implications for other secondees).

The tribunal found that it did not have jurisdiction to hear the claims against the co-workers, because they were not based or domiciled in the UK and their relationship with the claimant did not arise because of their employment relationship with the FCO. The EAT overturned that decision. It focused on the strength of the connection between each co-worker and Great Britain and British employment law and found that on the facts of the case there was a sufficiently strong connection for the tribunal to have jurisdiction.

The Court of Appeal reinstated the tribunal's decision. The EAT was wrong to focus on the connection between the co-workers and the FCO; the correct focus was on the relationship between the employee on one hand and the co-workers on the other. The fact that all the workers had a common (British) employer was not sufficient to give the tribunal jurisdiction. There were a number of factors that showed that the common employment by the FCO was "little more than happenstance":

  • The individuals had never worked together in the UK, only in Kosovo;  
  • They were seconded to EULEX separately, not as a team, so it was purely coincidental that they happened to be working in Kosovo at the same time;  
  • It was their roles within EULEX that brought the employees together, not their employment by the FCO, and their primary duty was to act in the interests of EULEX not the FCO;  
  • The key relationship upon which the detriment claim was based stemmed from their conduct of their EULEX roles; and  
  • The centre of gravity of the relationship was to be found in their performance of their EULEX roles, not their contracts of employment.

Those factors led to the conclusion that there was no sufficient connection between the common engagement of the claimant and her co-workers at EULEX and British employment law for the detriment claims to proceed.

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