The long arm of whistleblowing – expatriate claims
21 May 2019
In a global workplace and with global impetus for their cause, it is no surprise that those who speak up are pushing jurisdictional boundaries to seek maximum protection and to cast the liability net as widely as possible. But can employees seconded abroad sue co-workers in an Employment Tribunal where they suffer detriment abroad? The Court of Appeal decided no, in a recent case – but the answer might well be different in your more common expatriate scenario.
Joint liability and jurisdiction
The law is already clear that employers are liable for whistleblowing detriment caused by workers (subject to a “reasonable steps” defence) and that workers can bring free-standing claims against co-workers who victimise them. The Court of Appeal added the gloss last year (in Timis v Osipov) that co-workers can be jointly and severally liable with employers, finding in that case that two NEDs were on the hook for taking a decision to dismiss which amounted to a detriment.
In a cross-border context, when deciding whether a non-UK based whistleblower can bring a Tribunal claim, the courts have applied the same territorial tests as for unfair dismissal – the key question being whether the worker has a sufficiently strong connection with Britain and British employment law for a claim to be appropriate (the “sufficient connection test”). If they meet this test, they must then deal with the other hurdles (eg showing a protected disclosure) in order to get their claim off the ground.
In the latest case (Foreign and Commonwealth Office and others v Bamieh), the Court of Appeal has considered when expatriates can pursue co-worker rights. An employee brought claims against the FCO and two co-workers, based on alleged whistleblowing detriments suffered when all three workers were seconded by the FCO to an EU Mission and working in Kosovo. The claimant’s ability to proceed with the FCO claim was not disputed. But the fact that she had the same UK employer as the co-workers, and that they all had English law-governed contracts, was not enough to proceed against them. According to the Court, the sufficient connection test should be adapted to decide if her relationship with the co-workers as fellow secondees was sufficiently strongly connected with British employment law.
In the Court’s view, it was not. They had only ever worked together in Kosovo and were seconded separately. They had only come into contact through their roles for the Mission and it was this relationship (rather than their FCO employment) that had led to the alleged detriments. Moreover, the Mission was not a UK one and the relationship in question had a closer connection with EU law. Had the Mission been a purely UK one, the outcome may have been different.
Batten down the hatches
Employers should not take too much comfort from this decision, however. First, the claim against the FCO was still able to proceed as the “sufficient connection test” was satisfied – this is likely to be the case for the majority of secondments where the secondee remains employed by the UK entity while abroad and continues to be paid by the UK entity, receive UK benefits and/or undertake some work on behalf of the UK entity while abroad. Second, it is a fact-specific case and the secondment circumstances were unusual. Employers would therefore be wise to assume that secondees can invoke UK whistleblower provisions against both the company and co-workers abroad, if their secondment work or relationship remains somehow connected with the UK business. Whistleblower rights can be mobile, just like workers, and can also apply extra-territorially (as we know from the many Dodd-Frank reports that have been made by non-US employees). The pan-EU framework, to be introduced by the EU Whistleblower Directive, may add more colour to this.
All of this underlies the need for robust global whistleblowing policies, seamless governance and training to educate on, and mitigate against, the risk of claims in the first place, and to effectively manage those that arise. Host jurisdictions and managers should also be alerted to potential UK secondee rights and the risk of personal liability. In this age of transparency and accountability where workers are actively encouraged to speak up, ensuring that everyone who is involved in investigating any concerns – or managing the individual who has raised them – understands the need to protect against any related detriment or retaliation.