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The Court of Appeal has held in Bamieh v EULEX Kosovo and FCO that the Lawson v Serco test which determines whether an overseas employee can sue their employer in a British employment tribunal does not apply to whistleblowing claims against co-workers based overseas.

The test established in Lawson is whether the connection between the employment, Great Britain and British employment law are sufficiently strong to enable it to be said that it is appropriate for the employee to have a claim in Great Britain.

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 (also on secondment) 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 Employment Appeal Tribunal (EAT) disagreed holding that the tribunal had territorial jurisdiction to hear whistleblowing claims against the claimant's two co-workers in relation to the detriments which were alleged to have been committed while all three were on secondment. The Court of Appeal held that the EAT was wrong, and that the FCO employees were not domiciled in the UK or based there for work purposes and so the jurisdictional test in Lawson could not be extended to them.

Take note: The decision in Bamieh will come as a relief to businesses based in the UK with operations overseas, as it is unlikely that they will be found vicariously liable for any detrimental action carried out by their overseas workers towards another worker as a result of that worker's whistleblowing allegations. That is not to say that transnational businesses shouldn't still take steps as employers to protect whistleblowers and ensure they are not subjected to detriment as a matter of good practice.

This article is taken from HR Law – June 2019