The Employment Appeal Tribunal (EAT) has ruled that an employment tribunal can hear a case brought by a whistleblower against colleagues working overseas.
The so-called “Lawson v Serco” test is applied by employment tribunals in deciding whether an employee from overseas can bring a case in Britain against their employer – it is also applicable to whistleblowing detriment claims which can be brought against colleagues. In order to bring such a claim, the strength of the individual’s connection to Great Britain must be evaluated (section 47B(1A) of the Employment Rights Act 1996).
In Bamieh v EULEX (Kosovo) and others, an employee who worked for the Foreign and Commonwealth Office (FCO) brought a claim against two of her co-workers, based on whistleblowing detriments alleged to have taken place when all three were working in Kosovo, having been seconded from the FCO to an EU Mission.
In this case, the two colleagues lived overseas and took their day-to-day direction from the Head of Mission, also based in Kosovo. However, crucially, both were employees of the British government, employed under English law contracts, and the FCO maintained overall responsibility for things like disciplinary matters, dismissal and contract renewal.
The EAT overturned the employment tribunal’s original decision that it did not have territorial jurisdiction to hear the case against the two individuals. It considered that there an exceptionally strong connection between them and Great Britain and British employment law, and that was the only conclusion available so that claims against them should not have been struck out.
Obviously this is only the first hurdle which the claimant has overcome, it remains to be seen whether her whistleblowing detriment claim will in fact be upheld.