Extra-territorial reach of the ET?

Posted: 18th December 2014

WhistleblowingA novel attempt to deploy human rights legislation to extend the territorial reach of UK employment tribunals, so that they could deal with whistleblowing cases from around the globe, has failed but may be a sign of things to come.

An Italian investment banker claimed to have been unfairly dismissed from his post in Singapore after he made allegations of financial malpractice. The matter’s sole connection to Britain was that the employer bank had its headquarters in London.

The banker had his claim under the Employment Rights Act 1996 (ERA) struck out by the Employment Tribunal on the basis that it lacked territorial jurisdiction. In challenging that ruling before the Employment Appeal Tribunal (EAT), the banker’s lawyers raised issues which had not previously been considered.

In arguing that a ‘looser’ territorial test should be applied to whistleblowing cases, it was submitted that such a broad interpretation of the ERA was necessary to achieve compliance with the right to freedom of expression enshrined within Article 10 of the European Convention on Human Rights (ECHR). In an increasingly small world where companies operated globally, UK citizens, it was argued, had ‘a right to hear’ disclosures made abroad concerning British employers.

In dismissing the banker’s appeal, the EAT noted that neither the ECHR nor any provision of European Union law held sway in Singapore. It was a step too far to suggest that the mere fact that the bank had its headquarters in Britain was enough to bring the matter within the reach of domestic tribunals, given that the banker was a foreigner who made his disclosures abroad.