On Thursday (9 May 2019), the Court of Appeal handed down its decision in Foreign and Commonwealth Office and ors v Bamieh [2019] EWCA Civ 803, deciding that the Employment Tribunal did not have territorial jurisdiction over whistleblowing claims brought by an FCO employee working at EULEX against individual co-workers. This decision will have implications for the Employment Tribunal’s approach to jurisdiction over individual respondents more generally, most notably the liability of individuals under the Equality Act 2010 (“EqA”), although I argue that the Court of Appeal’s reasoning creates considerable uncertainty as to the approach which will be taken in EqA cases going forward.
The Facts
Mrs Bamieh worked as an international prosecutor. She was employed by the FCO, but seconded to EULEX Kosovo, an EU ‘Rule of Law Mission,’ which took over from a UN Mission set up following the war in the Balkans to help Kosovo’s judicial and law enforcement institutions meet international standards by becoming independent, sustainable, and accountable. Several FCO workers were seconded to EULEX, although these staff were not dominant, as many states contributed to EULEX and provided staff. In 2014, Bamieh’s contract was not renewed; she alleged that this was done because she had made protected disclosures, meaning that her dismissal was automatically unfair, and that she had also suffered various other detriments as a result of her whistleblowing.
Bamieh therefore brought claims in the ET against the FCO for unfair dismissal and whistleblowing detriment, however she also brought claims against two individual co-workers, who were also FCO secondees, for whistleblowing detriment pursuant to s.47B(1A) of the Employment Rights Act 1996 (“ERA”). (In addition, Bamieh also sued EULEX and a foreign co-worker, although these claims were dismissed for lack of jurisdiction and not appealed).
The FCO accepted that the ET had territorial jurisdiction over the direct claim against it, due to the strong connection between the employment relationship and the UK, following the Lawson v Serco [2006] UKHL 3; [2006] ICR 250 line of authorities. The FCO however, together with the co-workers, challenged the ET’s jurisdiction over the individual respondents.
The ET upheld this challenge at first instance, ruling that it did not have jurisdiction over those claims, but this finding was overturned by the EAT (Simler P); the FCO appealed to the CA.
The Court of Appeal’s reasoning
The Court of Appeal (Gross LJ, with whom Lewison and Singh LJJ agreed) found that the ET lacked the territorial jurisdiction to hear the claims against the individual co-workers, basing its conclusion on a primary ground and three secondary ones.
The Court of Appeal’s primary reasoning involved an application of the principles derived from the Lawson v Serco line of authorities, namely the question of whether there was a sufficient connection to British employment law to allow the whistleblowing provisions of the ERA to operate extraterritorially. The key distinction between the parties in relation to this question was which relationship had to be examined – that between the Claimant and her co-workers, or that between the co-workers and the FCO as their employer? Bamieh argued that since her co-workers’ liability under s.47B(1A) stemmed from the fact that they were also employed by the FCO, it was that employment relationship which was significant; Bamieh and her co-workers were ‘siblings,’ such that their relationship with their parent was key (see [48]). The Court of Appeal rejected this argument, holding that while common employment was a necessary component of liability under the statute, that alone could not determine the question of whether the ERA should apply extraterritorially to the actual relationships in question, namely those between Bamieh and her co-workers (at [67]).
It followed that the Court of Appeal had to examine the “factual reality of the relationships with which we are concerned” ([68]), and it found that there was not a sufficient connection to British employment law given that the co-workers worked together in Kosovo, in an international mission, that they were seconded separately, that the whistleblowing detriment stemmed from “the conduct of their EULEX roles,” and their common employment by the FCO was “little more than happenstance” ([69]). In conclusion, the Court of Appeal found (at [69(v)]) that:
“In the circumstances, although the contracts of employment of the Respondent and the co-workers were governed by English law and although they all owed duties to HMG, the centre of gravity of the relevant relationship between them is to be found in the theatre level performance of their EULEX roles, rather than their underlying FCO contracts of employment.”
Consequently, there was no sufficient connection to British employment law from which to infer that that the relationship was “within the ‘legislative grasp, or intendment’ of s.47B(1A)” ([70] applying the test from Lawson v Serco at [6]).
While the Court of Appeal found that this was sufficient to dispose of the appeal, it also considered that its conclusion was bolstered by other factors. Firstly, it found that under Rome II the individual torts would have been governed by Kosovan law, since they were committed in Kosovo and were not “manifestly more closely connected” with the UK (Rome II, art.4.3); this effectively provided another route to its primary conclusion. Secondly, it found that the practical consequences pointed towards its conclusion given the lack of control the FCO exercised over its seconded workers ([81]), and the fact that the UK’s approach to whistleblowers could be described as “an outlier” ([79]) such that it might cause difficulties and tension to apply the UK’s strict approach to an international mission. Finally, Bamieh had argued that if UK employment law did not apply there was no other system of law available with which the employment had a closer connection. The Court of Appeal rejected this, saying that there was a closer connection with EU law, and even with Kosovan law as a fall back. The fact that the Claimant might not have a claim under those systems of law was not crucial, since “it is the strength of the connection which matters – not the strength of the protection” ([82] – original emphasis).
One point which the Claimant sought to emphasise was that a refusal to extend jurisdiction could have regressive consequences for claims against individual respondents under the Equality Act, for example for discrimination or sexual harassment claims. This was based on the fact that the Court of Appeal’s decision in R(Hottak) v Foreign Secretary [2016] EWCA Civ 438; [2016] 1 WLR 3791 had generally been interpreted as equating the territorial scope of the EqA and the ERA. The Court of Appeal clearly baulked at this conclusion, and therefore and re-interpreted Hottak, confining its effect. It held that Hottak simply had no bearing on the whistleblowing provisions, and only found that the nature of anti-discrimination provisions in the EqA did not necessarily give them a wider scope than the unfair dismissal provisions under the ERA. It also held that given the greater international consensus regarding discrimination, as compared to whistleblowing, the risk of conflict between different legal systems would be reduced. Consequently, it found that its decision would not result in “regressive and ‘seismic’ consequences for the pursuit of other claims” ([80]).
Implications
It is clear from the Court of Appeal’s discussion of Hottak that it was keen for its decision not to unduly restrict claims against individual respondents under the EqA, but in my view such a desire is hard to square with the Court’s reasoning. The only distinguishing factor addressed by the Court was the greater international consensus in relation to discrimination and harassment, but international consensus played a subsidiary role in the Court’s reasoning. Under the Court’s reasoning, a claimant under the EqA would still have to show a sufficient connection between her relationship with her co-workers and British employment law. What will constitute a sufficient connection however is unclear; the Court’s restrictive interpretation of Hottak suggests that such a connection will be easier to establish in relation to EqA claims than whistleblowing ones, and the only basis for that would appear to be that Parliament must have intended such claims to have a wider territorial scope. Such reasoning seems to be in tension with even the restricted interpretation of Hottak however, which seemed to hold that the nature of discrimination claims could not give rise to an inference that Parliament intended them to have a wider effect than ERA unfair dismissal provisions. Further, this would seem to conflict with the Court of Appeal’s reasoning in relation to Rome II which required a “manifestly” closer connection with the UK.
Ultimately therefore, it seems that the decision has provided very little clarity on the correct approach for the ET to take in relation to jurisdiction over individual respondents in EqA claims. While the decision clearly provides ammunition for respondents seeking to dispute jurisdiction, the lack of clarity may make settlement more difficult to achieve, and will force the ET to ‘muddle through’ until further appellate guidance, which in the light of the decision in Bamieh, seems inevitable and necessary. Leave to appeal to the Supreme Court has been sought, so such guidance may come from that source, or we may have to wait until the issue makes its way through the courts again.
Written by Stuart Sanders
