Bamieh v Eulex (Kosovo) & Ors, Court of Appeal - United Kingdom Employment Appeal Tribunal, January 19, 2018, [2018] UKEAT 0268_16_0119

Resolution Date:January 19, 2018
Issuing Organization:United Kingdom Employment Appeal Tribunal
Actores:Bamieh v Eulex (Kosovo) & Ors
 
FREE EXCERPT

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

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.

UKEAT/0268/16/RN

-50-

THE HONOURABLE MRS JUSTICE SIMLER DBE

Introduction

  1. 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. The Appellant on this appeal, Ms Maria Bamieh, was directly employed by the UN Mission in Kosovo (known as UNMIK) as an international prosecutor in 2007. When the UN withdrew in December 2007, the EU set up EULEX Kosovo (as a Rule of Law Mission - referred to below as ``EULEX'') to continue UNMIK's work. With effect from 24 November 2008, Ms Bamieh continued her work as an international prosecutor in Kosovo as an employee of the UK Foreign and Commonwealth Office (``the FCO'') seconded to EULEX on annually renewable contracts.

  2. Her annual contract was not renewed in November 2014 and her employment by the FCO came to an end. Ms Bamieh brought claims in the Employment Tribunal against the FCO, EULEX and a number of named individuals, based on alleged detrimental treatment for whistleblowing. Those claims have not been determined on their merits, and the full facts have not been found.

  3. The issues raised by this appeal follow a six day preliminary hearing (in March 2016) before Employment Judge Wade directed at whether and to what extent the Employment Tribunal has jurisdiction over her claims for whistleblowing detriment; and/or unfair dismissal under s.103A Employment Rights Act 1996 (``the ERA''). The FCO concedes that the Employment Tribunal has jurisdiction to hear claims against it of unfair dismissal under s.103A ERA and whistleblowing detriment under s.47B(1) ERA (though it contests the extent of its vicarious liability for acts of those working in Kosovo), but EULEX and all individual named Respondents deny that any jurisdiction exists.

  4. By a judgment promulgated on 16 June 2016 (``the Judgment''), EJ Wade 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 accordingly struck out. The Judgment is clear and concise. Its main conclusions can be summarised shortly as follows:

    (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 (``the Convention'') give an extended right to a ``European'' remedy in Kosovo. Further, the EU Charter of Fundamental Rights (``the Charter'') cannot assist as there is no EU right to enforce in this case;

    (vi) No decision was made on whether EULEX and/or Mr Meucci have submitted to the jurisdiction;

    (vii) The Joint Action is clear and determines the capacities of the Respondents. It did not intend that EULEX or Mr Meucci should be Ms Bamieh's employer.

  5. The appeal seeks to challenge most of the conclusions summarised above and the Employment Tribunal's overall conclusion that there is no jurisdiction to hear claims against any of the Respondents but the FCO. It is resisted by all Respondents.

  6. I refer to the parties as they are referred to in the Judgment for ease of reference. Mr Christopher Milsom appears on behalf of the Claimant, as he did below, assisted by Mr Nathan Roberts. For the EULEX Respondents (that is, the First, Third, Fifth and Sixth Respondents) Mr Spencer Keen appears as he did below, assisted by Ms Rosalie Snocken. Mr Ben Collins QC appears for the FCO (the Second Respondent) but did not appear below, and is assisted by Ms Penelope Nevill, who did. I am grateful to all counsel for their assistance.

  7. There are five grounds of appeal set out in the Notice of Appeal dated 22 July 2016 as follows:

    (i) Ground one: the Employment Tribunal erred in its conclusion that an Order in Council was required in order to bestow domestic legal personality upon EULEX and/or its reasoning was inadequate. Further, it failed to address the alternative cases advanced by the Claimant that EULEX should be regarded as an unincorporated association for conferring domestic legal personality on it and/or as an emanation of the EU pursuant to Article 47 of the Treaty of Lisbon.

    (ii) Ground two: the Employment Tribunal erred in its approach to whether the Claimant had an ``employment relationship'' with EULEX under domestic law, by wrongly regarding Article 10(2) of the Joint Action (that established EULEX) as dispositive of the question: the focus should have been on the situation on the ground since an employment relationship was not precluded by Article 10(2) of the Joint Action, and the Employment Tribunal overstated the role of the National Contingent Leader so as to minimise the scope of an employment relationship with EULEX...

To continue reading

REQUEST YOUR TRIAL