The EAT has held in Bamieh v EULEX (Kosovo) and others that the Lawson v Serco test which determines whether an overseas employee can sue their employer in a British employment tribunal also applies to whistleblowing claims against co-workers based overseas.
The claimant was employed by the Foreign and Commonwealth Office (FCO) under a series of fixed-term contracts governed by English law. She was seconded to EULEX in Kosovo, a "Rule of Law Mission". During her secondment she remained under the authority of her sending state (the UK) but was required to carry out her duties following the Mission's chain of command. When her last contract was not renewed, and believing that this non-renewal was due to protected disclosures that she had made, she brought a claim in an employment tribunal naming numerous respondents including the FCO, EULEX and two other FCO employees who worked alongside her at EULEX.
Following a preliminary hearing, an employment judge held that the tribunal had no jurisdiction to hear any of the claims except the claim against the FCO. The EAT disagreed holding that the tribunal had territorial jurisdiction to hear whistleblowing claims against the claimant's two co-workers employed by the FCO in relation to the detriments which were alleged to have been committed while all three were on secondment. The fact that the two co-workers were not based in Great Britain was not decisive and could be overcome where the connection with Great Britain and British employment law is sufficiently strong (which it was in this case).
Meanwhile, in another recent whistleblowing case, the EAT has held in Malik v Cenkos Securities Plc that a person who subjects a whistleblower to a detriment has to be personally motivated by the protected disclosure.
The claimant was employed by Cenkos Securities Plc, an independent specialist securities firm. During his employment various issues arose, mainly concerning whether the claimant had a conflict of interests and had failed to declare them. He had also made a number of disclosures, some of which were later held to be protected. Cenkos's Head of Compliance became aware of an alleged conflict of interest and ordered an investigation, as a result of which the claimant was suspended. The claimant resigned and issued proceedings in the employment tribunal, alleging that the Head of Compliance was motivated by his protected disclosures and that there was a conspiracy to get rid of him.
The EAT found that the Head of Compliance had not been motivated by the fact that the claimant had made protected disclosures and that he had made his decisions alone and had not been influenced by anyone else.
Take note: Bamieh confirms that if a worker based abroad has a sufficient connection to Great Britain to gain the protection of the Employment Rights Act 1996 then they should also be liable for any whistleblower detriment. Meanwhile the decision in Malik makes it clear that personal knowledge and motivation must be present in order for a detriment claim to succeed.
This article is taken from HR Law – February 2018.
