Maria Bamieh v EULEX Kosovo and Others
| Jurisdiction | UK Non-devolved |
| Judge | Mrs Justice Simler |
| Neutral Citation | UKEAT/0268/16/RN |
| Court | Employment Appeal Tribunal |
| Date | 19 January 2018 |
| Subject Matter | Jurisdictional Points,Victimisation Discrimination,Jurisdictional Points - Worker employee or neither,Jurisdictional Points - Working outside the jurisdiction,Victimisation Discrimination - Whistleblowing,Not landmark |
| Published date | 19 January 2018 |
Copyright 2016
Appeal No. UKEAT/0268/16/RN
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
On 30 & 31 October 2017
Handed down on 19 January 2018
Before
THE HONOURABLE MRS JUSTICE SIMLER DBE
PRESIDENT
MARIA BAMIEH APPELLANT
(1) EULEX KOSOVO RESPONDENTS
(2) FOREIGN & COMMONWEALTH OFFICE
(3) MR G MEUCCI
(5) MS C FEARON
(6) MR J RATEL
Transcript of Proceedings
JUDGMENT
UKEAT/0268/16/RN
APPEARANCES
For the Appellant MR C MILSOM
MR N ROBERTS
(Of Counsel)
Instructed by Bindmans LLP
236 Gray’s Inn Road
London WC1X 8HB
For the Respondents 1,3,5 & 6
For Respondent 2
MR S KEEN
MS R SNOCKEN
(Of Counsel)
Instructed by Emmanuelle Raoult
EU Legis
Rond Point Schuman 6
Box 5, Office 416
1040 Bruxelles
MR B COLLINS
(One of Her Majesty’s Counsel)
MS P NEVILL
(Of Counsel)
Instructed by Government Legal
Department Employment Team
One Kemble Street
London WC2B 4TS
UKEAT/0268/16/RN
SUMMARY
JURISDICTIONAL POINTS - Worker, employee or neither
JURISDICTIONAL POINTS - Working outside the jurisdiction
VICTIMISATION DISCRIMINATION - Whistleblowing
Ms Bamieh was employed by the FCO at all material times and seconded by the FCO to work
as an international prosecutor for EULEX in Kosovo. When her employment came to an end,
she brought protected disclosure detriment and unfair dismissal claims under the Employment
Rights Act 1996 against the FCO, EULEX and a number of individuals who worked in Kosovo
for EULEX. The FCO accepted that the Tribunal has extraterritorial jurisdiction against it, but
the other Respondents did not and a preliminary hearing to deal with the jurisdictional dispute
took place.
By its judgment (challenged on appeal) the ET held that there was no jurisdiction to hear any of
Ms Bamieh’s claims against Respondents other than the FCO and all other claims were struck
out. The main conclusions leading to that decision were in summary:
(i) EULEX, a multinational Rule of Law mission, established by an EU Council Decision
under the Common Foreign and Security Policy of the EU (the Council Joint Action
2008/124/CFSP, “the Joint Action”), has no domestic legal personality and it was unnecessary
to impute such a personality to it in order to give effect to EU law;
(ii) Even if EULEX has domestic legal personality, the Employment Tribunal has no
territorial jurisdiction over acts done by EULEX or Mr Meucci (as Head of Mission). In
common with other contributing countries, the FCO has no control over or relationship with
EULEX, though it sends staff on secondment to EULEX;
(iii) The Employment Tribunal has no territorial jurisdiction in respect of the unlawful
detriment claims against Mr Ratel and Ms Fearon, both seconded by the FCO to work for
EULEX. The Tribunal left open the question whether the FCO could be vicariously liable for
their acts or omissions in Kosovo done in the course of their employment by the FCO;
(iv) Neither EULEX nor its Head of Mission acted as agents of the FCO so as to make
themselves liable under s. 47B(1A) ERA, or the FCO vicariously liable for their acts or
omissions in Kosovo. Although the FCO contributed to the EULEX mission, it worked for the
EEAS and not for the FCO at all. As Head of Mission, Mr Meucci had no role in relation to the
FCO, and if he was agent for any country, it would have been Italy;
(v) Neither Article 6 or 10 of the European Convention on Human Rights give an extended
right to a “European” remedy in Kosovo. Further, the EU Charter of Fundamental Rights
cannot assist as there is no EU right to enforce in this case.
The Tribunal’s decision to strike out the claims against all Respondents but the FCO was
challenged on appeal by Ms Bamieh, and issue was taken with some (but not all) of the
conclusions listed above. The arguments are wide-ranging.
Save for the conclusion at (iii) that the Employment Tribunal has no territorial jurisdiction in
relation to whistleblowing detriment complaints against Mr Ratel and Ms Fearon, all grounds of
appeal failed and were dismissed, substantially for the reasons given by Employment Judge
Wade. The appeal was upheld in relation to extraterritorial jurisdiction in respect of Mr Ratel
and Ms Fearon. There was 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.
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