A worker will only be able to bring a whistleblowing detriment claim against their colleagues working overseas if the relationship between the workers has a sufficiently strong connection with Great Britain and British employment law. In FCO v Bamieh the Court of Appeal has overturned an EAT ruling that it is the strength of the connection between the co-workers and the employer that matters. Leave has been sought to appeal to the Supreme Court.
In this case, the co-workers were alleged to have subjected the claimant to detriment while all three were working for an EU mission in Kosovo, EULEX. The fact that they were all employed by the FCO was little more than happenstance; they had never worked together in the UK and had been seconded separately to EULEX. The Court concluded that, because the centre of gravity of the relationship between the workers was their EULEX roles and not the underlying contracts of employment, there was a closer connection with EU or Kosovan law than British law. It therefore concluded that there was no jurisdiction to hear claims that the co-workers were personally liable for the detriment. (The FCO had accepted there was jurisdiction against it for whistleblowing unfair dismissal, and the tribunal left open whether the FCO could be vicariously liable for the co-workers’ acts of detriment despite there being no territorial jurisdiction over the claims against the individuals; this issue was not considered by the Court of Appeal.)
The Court rejected the contention that this decision would similarly restrict the territorial scope of co-worker claims under the Equality Act, eg for harassment, although the ruling does leave this issue unclear. Although the case could be relevant to private sector employers seconding staff to international subsidiaries or JVs or other entities overseas, it may be that in most cases it will be easier to establish that the co-worker relationship is most closely connected with Britain, eg because the workers may be working for the GB employer’s business, have worked together in Britain and/or have been seconded out together.