Foreign and Commonwealth Office v Maria Bamieh
| Jurisdiction | England & Wales |
| Judge | Lord Justice Gross,Lord Justice Lewison,Lord Justice Singh |
| Judgment Date | 09 May 2019 |
| Neutral Citation | [2019] EWCA Civ 803 |
| Date | 09 May 2019 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2018/0726 A2/2018/0752 |
[2019] EWCA Civ 803
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
The Hon. Mrs Justice Simler
UKEAT/0268/16/RN
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Gross
Lord Justice Lewison
and
Lord Justice Singh
Case No: A2/2018/0726 A2/2018/0752
Ben Collins QC and Penelope Nevill (instructed by Deborah Lawunmi, Government Legal Department) for the 1 st Appellant
Spencer Keen and Rosalie Snocken (instructed by Emmanuelle Raoult, EU Legis) for the 2 nd and 3 rd Appellants
Christopher Milsom and Nathan Roberts (instructed by Peter Daly, Bindmans LLP) for the Respondent
Hearing dates: 26 and 27 March 2019
Approved Judgment
INTRODUCTION
Do the “whistleblowing” provisions contained in ss. 47B(1A) and 48(1A) of the Employment Rights Act 1996 (“the ERA”) apply extraterritorially in respect of a claim between co-workers seconded to the international European Union Rule of Law Mission in Kosovo (“EULEX”), in circumstances where each was (separately) employed by the Foreign and Commonwealth Office (“FCO”)? That is the sole question on this appeal.
The Employment Tribunal (“ET”) in its judgment, dated 14 June 2016 (“the ET judgment”), said no. Allowing the appeal of the then Claimant (and now Respondent) from the ET in this regard, the Employment Appeal Tribunal (“the EAT”), in its judgment, dated 19 January 2018 (“the EAT judgment”), said yes.
The FCO and the co-workers, Mr Ratel and Ms Fearon (“the co-workers”) appeal to this Court from the decision of the EAT.
Considerations of the public interest are central to the concept of whistleblowing. A helpful working definition of whistleblowing is furnished by the Council of Europe Recommendation (CM Rec 2014/7 on Protection of Whistleblowers), Appendix A (cited in Lewis and others, Whistleblowing: Law and Practice, 3rd ed., at para. 1.12):
“….any person who reports or discloses information on a threat or harm, to the public interest in the context of their work-based relationship….”
As explained in Whistleblowing (ibid), there has been a sea change in the cultural perception of the value of whistleblowing. However, whatever the cultural shift domestically, it could not be said that there was an international consensus in this regard. Thus, at all material times, there has been no EU Directive on whistleblowing.
Insofar as material, the ERA provides as follows:
“ 47B Protected disclosures
(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.
(1A) A worker (‘W’) has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done –
(a) by another worker of W's employer in the course of that other worker's employment….
on the ground that W has made a protected disclosure.
(1B) Where a worker is subjected to detriment by anything done as mentioned in subsection (1A), that thing is treated as also done by the worker's employer.
(1D) In proceedings against W's employer in respect of anything alleged to have been done as mentioned in subsection (1A)(a), it is a defence for the employer to show that the employer took all reasonable steps to prevent the other worker –
(a) from doing that thing, or
(b) from doing anything of that description.
48 Complaints to employment tribunals
(1A) A worker may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 47B.”
S.43B ERA, inserted by the Public Interest Disclosure Act 1998 (“the PIDA”), contains the following definition of “protected disclosure”:
“ 43B Disclosures qualifying for protection
(1) In this Part a ‘qualifying disclosure’ means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following –
(a) that a criminal offence has been committed, is being committed or is likely to be committed,
(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,
(c) that a miscarriage of justice has occurred, is occurring or is likely to occur…..
(f) that information tending to show any matter failing within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.
(2) For the purposes of subsection (1), it is immaterial whether the relevant failure occurred, occurs or would occur in the United Kingdom or elsewhere, and whether the law applying to it is that of the United Kingdom or of any other country or territory.”
It has not been suggested that the extraterritorial element contained in s.43B(2) assists in the resolution before us.
It may be noted at the outset that any “whistleblowing” claim between the Respondent and the co-workers would be non-contractual, rather than contractual.
THE FACTS
For present purposes, there is no or no significant dispute as to the facts. In large measure I gratefully take them from the ET and EAT judgments.
(A) EULEX: In a nutshell, following the war in the Western Balkans, the UN Security Council deployed international personnel in Kosovo to help the country reach international standards and to achieve self-government.
Subsequent to the UN's withdrawal in or about December 2007 and to continue the work of the United Nations Interim Administration Mission in Kosovo (“UNMIK”), EULEX was established on 4 February 2008 by the Council of the EU, as a Rule of Law Mission in Kosovo, through the Common Foreign and Security Policy (“CFSP”). This was done by way of Council Joint Action 2008/124/CFSP (“the Joint Action”) and subsequent European Council Decisions. The Joint Action may be regarded as analogous to a treaty between member states (see, Simler P, EAT judgment at [16]).
EULEX is solely based in Kosovo. According to Art. 2 of the Joint Action, its mandate is:
“…to assist the Kosovo Institutions, Judicial Authorities and Law Enforcement Agencies in their progress towards sustainability and accountability in further developing and strengthening an independent multi-ethnic justice system and…ensuring that these institutions are free from political interference and adhering to internationally recognised standards and European best practices.”
A large number of contributing states second personnel to EULEX, mainly but by no means exclusively EU member states. The UK cohort of seconded staff members was not particularly dominant.
Inevitably, as with any secondment, there is a degree of duality. Thus, as provided by the EULEX Personnel Handbook (para. 1.4) and Operational Plan (“the OPLAN”, see para. 5.2.1), all staff members were obliged to carry out their duties following the:
“…..Mission chain of command and shall act in the sole interest of the Mission.”
However, while disciplinary control over staff rested with EULEX, disciplinary action would be exercised by, and the responsibilities of employer remained with, the seconding home state: OPLAN, para. 5.2.2. The Joint Action provided (in Arts. 8.6 and 10.2):
“8.6: the Head of Mission shall be responsible for disciplinary control over the staff. For seconded staff, disciplinary action shall be exercised by the National or EU Authority concerned…
10.2: the State…having seconded a member of staff shall be responsible for answering any claims linked to the secondment, from or concerning a member of staff. The State shall be responsible for bringing any action against the seconded person.”
A “ Code of Conduct and Discipline” (“COC”) was annexed to OPLAN. It was complementary to the obligations of staff members under international law and the law of the staff member's home jurisdiction: COC, para. 1.3. It was to be considered as a written order to all staff members, backed by disciplinary sanction for non-compliance. The COC provided that staff members would observe “the law applicable in the place of deployment” (para. 2.1); discrimination of any kind “based upon protected grounds under the law applied in Kosovo” was prohibited, as was behaviour that “may be construed as abusive, oppressive, condescending or likely to cause humiliation” (para. 2.2); so too, amongst other matters, sexual harassment, harassment and bullying were prohibited (paras. 2.3 – 2.7).
The COC addressed “Disclosure of Information” as follows (at para. 3.6):
“Staff members will not improperly disclose confidential information obtained as a result of their work with the Mission…..
Confidential information means all information that has been accorded an official EU classification level, as well as the identities of individuals, political information, operating procedures or any other information that may cause prejudice to the security of individuals, information that may cause public danger, disorder or crime, or information that may cause damages to the Mission or its reputation.
Improper disclosure means disclosure that was not within a staff member's general delegated authority to disclose, or which was not expressly authorised by a superior officer.
It is the obligation of staff members to report through the chain of command any cases of malpractice, corruption and incompetence.
Statements by staff members to the press, newspapers, radio or television or any other media are not permitted, unless proper authorisation from the HoM or his designate has been obtained through the chain of command.”
As provided by the COC (at para. 5), involvement in criminal acts constituted grounds for immediate repatriation or termination of contract; “criminal acts” were defined as including corruption and organised crime. The COC went on to deal (at...
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