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19 June 2019
In an unusual case of whistleblowing detriment brought by an overseas employee against two co-workers (who were also based overseas), the Court of Appeal recently ruled that the employment tribunal in question had no jurisdiction to hear the claim in relation to the personal liability of the co-workers because they were outside the scope of UK employment law.
The decision may have implications for other types of claim brought by employees posted overseas where similar personal liability provisions apply, such as discrimination and harassment.(1)
The events took place in Kosovo in an EU mission called EULEX, which was established to support the Kosovan justice system after the Balkan war. All EULEX staff were seconded to work there by various governments within and outside the European Union. They had to act in the best interests of EULEX and follow its code of conduct, but they remained employed by their seconding governments.
The claimant was employed by the UK Foreign and Commonwealth Office (FCO) and was seconded to work at EULEX as a prosecutor. She claimed that her manager and a colleague (both of whom were also employed and seconded by the FCO) treated her detrimentally because she was a whistleblower. She also claimed that the FCO did not renew her contract because she was a whistleblower, although the Court of Appeal did not have to consider that part of her claim.
The Employment Rights Act 1996 makes co-workers personally liable if they subject a whistleblower to a detriment. In this case, the manager and colleague both argued that they were outside the territorial scope of those provisions, despite being employed by the FCO on UK law contracts.
However, this dispute was not about whether the claimant herself had any whistleblowing rights under UK law against the FCO. Claimants who work overseas normally have no British statutory employment rights unless there is a sufficiently strong relationship with UK law – for example, because they are posted abroad to work for a British business. However, the FCO had not contested the employment tribunal's jurisdiction to hear the claim against it; as such, the dispute that the Court of Appeal had to resolve was purely about the co-workers' personal liability.
The Court of Appeal decided that a claim could not be brought against the co-workers under the Employment Rights Act's personal liability provisions for the following main reasons:
Therefore, the relationship between the co-workers was not a relationship to which UK law applied.
From a practical perspective, the Court of Appeal added that there is currently no international consensus about whistleblowing protection. Applying UK whistleblowing law between FCO secondees working in EULEX – when most staff were seconded from elsewhere – would have caused real difficulty for the running of EULEX.
Although there are many cases about the rights of overseas claimants under UK employment law, this is the first reported case about the potential liability of overseas perpetrators.
The Court of Appeal's ruling does not establish a general employment law principle of 'What happens in Vegas stays in Vegas'. It implies that the answer might have been different if the co-workers had gone on secondment as a group and worked together by design rather than coincidence. For example, if a project team is sent from the United Kingdom to work on secondment at an overseas client site the relationships within that team are much more likely to be governed by UK employment law.
The decision deals only with a scenario where the claimant and the co-workers are all based overseas. This raises a question about whether a claimant based in Britain, who wants to make a claim against a co-worker based overseas, must also first establish that their co-worker relationship is governed by UK law. It is unclear what the ingredients of the co-worker relationship would need to be in order to be certain that it would be governed by UK law.
The United Kingdom's whistleblowing provisions are similar (but not identical) to its harassment and discrimination provisions set out in the Equality Act 2010, which also follows similar principles to establish whether an overseas employee falls within its scope. The courts may ultimately have some difficult policy decisions to make if, for example, the Court of Appeal's approach in this case had led to overseas perpetrators of sexual harassment against UK colleagues avoiding personal liability entirely.
The decision relates only to claims against the co-workers in respect of their personal liability. The Court of Appeal did not have to decide whether the FCO could be vicariously liable for what the co-workers were alleged to have done, even if the co-workers themselves could not be made personally liable for it. The relevant whistleblowing and discrimination provisions provide that a detrimental act done by an employee should also be treated as having been done by the employer, but with the possibility of the employer running a defence of having taken all reasonable steps to prevent it.
It is unclear whether an employer can be vicariously liable for detrimental acts which fall out of scope of UK employment law or if this depends on whether the act is unlawful under another applicable law. This question is due to be decided separately in the next stage of the case. Even if the FCO could ultimately be liable, there may still be the possibility of a claimant being left without a remedy if an employer runs a successful reasonable steps defence.
As the Court of Appeal noted, no current common legislation protects whistleblowers. However, the European Union is in the process of adopting a new directive on whistleblowing, which would establish some common protection throughout EU member states.
For further information on this topic please contact Carolyn Soakell or Gemma Taylor at Lewis Silkin by telephone (+44 20 7074 8000) or email (email@example.com or firstname.lastname@example.org). The Lewis Silkin website can be accessed at www.lewissilkin.com.
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