Bamieh v Eulex (Kosovo) & Ors [2018] UKEAT 0268_16_0119

EAT
Bamieh v Eulex (Kosovo) & Ors
[2018] UKEAT 0268_16_0119 · 2018-01-19
[79]Secondly, and in any event, as the Court of Appeal made clear in Sharpe v The Bishop of Worcester [2015] EWCA Civ 399 (per Arden LJ) although s.43K(1) ERA was enacted primarily to protect agency workers , there must be a contract between the two parties for the extended definition of worker under s. 43K(1)(a) or (b) ERA to apply. EJ Wade made no finding that there was a contract of any kind between EULEX and the Claimant; and the findings of fact do not obviously support an inference that there was one, still less an inevitable inference. The Joint Action sets out the chain of command, the responsibility for day-to-day management of the Mission etc. The Claimant was obliged to comply with directions from her line managers in Kosovo (etc) but that was as a consequence of her contract with the FCO which required her to do so. In those circumstances, it seems on the face of things to be unnecessary to imply any contract between the Claimant and EULEX (or Mr Meucci). 80. In fact, the sole challenge made in the Notice of Appeal under this ground is that EJ Wade wrongly regarded Article 10(2) of the Joint Action as dispositive of the question whether EULEX was the de facto or legal employer of seconded staff members (paragraph 19 of her Judgment), in circumstances where it is submitted, Article 10(2) of the Joint Action does not preclude EULEX from becoming a party to a dispute in the sending state. Mr Milsom contends that the proper approach was to consider:(i) the question as a matter of domestic law focussed on the “situation on the ground”;(ii) the fact that the Joint Action does not bar an employment relationship between the Claimant and EULEX and(iii) the reality of the National Contingent Leader’s role which was very limited and ought not to have been relied on to minimise the scope of an employment relationship with EULEX. 81. I do not consider that any error of law is made out in relation to this ground. First, I do not understand why employment fell to be considered as a matter of domestic law in relation to EULEX and/or Mr Meucci as Head of Mission. The relationship between them and the Claimant was based entirely in Kosovo and there is no evidence or finding of any contract between them, still less a contract governed by English law. The Claimant has not begun to address this point. Secondly, I consider that Article 10(2) of the Joint Action is plainly material to this issue; but on a fair reading of paragraph 19 of the Judgment, do not consider that Article 10(2) was regarded on its own as dispositive. It formed part of the relevant context and reflected the intention of the signatories to the Joint Action that EULEX should not be the employer, de facto or legally, of its seconded members of staff. However, EJ Wade made careful findings of fact about the “situation on the ground” as summarised above, that were unarguably open to her on the evidence and the case advanced below; and reveal no error of law. These included findings that t he governing instruments (the Joint Action, the OPLAN and the SOP) expressly allocate specific roles and responsibilities to the Head of Mission on the one hand and the seconding state or EU institution on the other in relation to instructions to staff, day-to-day management, decisions to commence investigations and disciplinary procedures. Although EJ Wade recognised the duality of the engagement, and that the FCO did not micromanage seconded members of staff in Kosovo and had little contact with them, she nevertheless held that the critical responsibilities as employer (the decision and authority to issue warnings or impose other disciplinary action including renewal or non-renewal of fixed term appointments) remained with the sending state with whom the staff member had his or her employment contract. That finding was open to her and not arguably perverse. There is no basis in the findings of fact to support a conclusion that EULEX and/or Mr Meucci was the Claimant’s employer. 82. The faint challenge (not pressed orally by Mr Milsom) to the nature of the National Contingent Leader’s role is a pure perversity challenge in circumstances where the high hurdle for perversity is simply not met. There was evidence to support the finding made in respect of this role and the Claimant cannot go behind it. 83. In any event, EJ Wade concluded that there was no territorial jurisdiction in relation to EULEX as a mission established outside Europe and based in Kosovo, which is neither EU controlled or partly controlled (para 50 of the Judgment). She also concluded that if Mr Meucci was the Claimant’s employer (which for the purposes of the Joint Action he was not) he too was outside territorial scope as an Italian national with no physical or legal links to Great Britain or British employment law (para 51 of the Judgment). It seems to me, in agreement with the Respondents in those circumstances, that unless those conclusions can be challenged, the arguments directed at challenging the employment relationship issue cannot assist the Claimant in any event. Ground 3: Territorial jurisdiction over EULEX 84. The challenge under this ground is to EJ Wade’s conclusion that if EULEX has domestic legal personality, there is no territorial jurisdiction in relation to EULEX. At paragraphs 49 and 50 of the Judgment she held; “49. A problem in relation to claims against all the respondents apart from FCO is that they are not domiciled in England and Wales nor do they carry on business there or in an EU country which was not the case with the Respondents in all the well known cases. This is a sine qua non for jurisdiction according to Baroness Hale in Duncombe (paragraph 16). 50. If EULEX has a personality there is no territorial jurisdiction. Eulex is based only in Kosovo, it is a multinational Rule of Law mission with staff drawn from many different countries. It was established under the CFSP, it is a mission with the characteristics of a military peacekeeping mission and it does not operate under the legal system of any one country. In common with the other contributing countries FCO has no control of or relationship with EULEX though it may send staff. 85. The grounds of appeal directed at this conclusion are as follows:
“17. The ET’s judgment has left considerable uncertainty in a number of areas. These include the extent to which the conduct of EULEX is attributable to the FCO. Agency was one matter advanced by the Claimant and addressed at [62]-[63]. There was a wider question, however, as to legal attribution pursuant to the Joint Action with which the ET failed to engage. 18. The evidence of EULEX was that where – as here – a Head of Mission suspends an FCO secondee that should be adjudicated upon in the courts of the seconding state. “This is supported by the case law of the ECJ that the head of mission only has delegated powers from the seconding authority. It (the decision to suspend) is made on behalf of a seconding state…Disciplinary control is transferred directly to the heads of mission – he does it on behalf of the seconding state.” 19. To the extent that the ET’s conclusions on agency [62]-[63] considered otherwise, these were inadequately reasoned and erroneous in law, not least because this approach would conflict with the ECJ decision of C-455/14 H v Council of the EU and ors . In the event conduct is not attributed to the FCO there would remain a gap in protection which is counter to the Joint Action, the Convention and the Charter”. 86. I agree with Mr Collins QC that it is not clear from these paragraphs what criticism the Claimant makes of EJ Wade’s conclusion about territorial jurisdiction in relation to EULEX, though it is clear that there is no attack on the findings at paragraphs 49 and 50. 87. No doubt recognising the difficulty presented by his Notice of Appeal, Mr Milsom sought to argue in relation to this ground, that the Tribunal’s approach, both to Article 10(2) and territoriality, was flawed in circumstances where, in a s.43K scenario (where a worker is supplied by his or her employer to a host organisation) the claim against the supplying employer is within territorial scope so that the same must also apply to the claim against the so-called host-entity, producing an obviously sufficiently close connection to the UK and UK employment law. 88. It is simply not permissible in an appeal to the EAT to treat the Notice of Appeal and grounds as a moving target in this way. This is a complex appeal with all sides legally represented. A detailed Notice of Appeal was prepared by counsel. The EULEX Respondents’ Answer to the Notice of Appeal takes the point expressly that there is no appeal against the finding that the Tribunal has no territorial jurisdiction over EULEX (see paragraph 17). A series of responses to the EULEX Respondents’ Answer was prepared. The issues were clearly identified in advance of the appeal hearing. No amendment application was made at any stage to raise any argument directed at paragraphs 49 and 50 of the Judgment and in the circumstances, it seems to me that Mr Milsom is simply not entitled to pursue any challenge to this conclusion which has not been appealed. 89. As for the points expressly taken in the Notice of Appeal, in relation to attribution, as I understand the point, the Claimant contends that if EULEX has no domestic legal personality, conduct taken by EULEX (including disciplinary action) must be attributed to the FCO and Article 10(2) of the Joint Action, correctly construed, demands no less: see H v Council of the EU and others (T-271/10 the General Court decision at paragraphs 50 and 51) which is unaffected by the subsequent appeal . The Tribunal did not address this point but was compelled to conclude as a matter of law that the conduct of EULEX is attributable to the FCO if EULEX cannot be sued, otherwise there will be a gap in protection for the Claimant. 90. I do not consider that attribution falls to be dealt with as a matter of law; or that EJ Wade erred in this regard. As far as I can see, the question of attribution, like the question of vicarious liability (referred to below in relation to ground four), was not one of the issues identified for decision at the preliminary hearing. This is unsurprising. Which (if any) delegated acts or omissions are to be attributed to which actor is a fact sensitive question that depends on the nature of the particular act, by whom it was delegated, and whether and by whom it was adopted. There was no error by EJ Wade in leaving this question open in the circumstances. 91. Insofar as the Notice of Appeal challenges the Employment Tribunal’s decision on agency (at paragraphs 62 and 63) two points are made. First it is argued that the conclusions on agency are in error of law because they conflict with the decision of the CJEU in H v Council of the EU and others (T-271/10 the General Court decision) and if conduct is not attributed to the FCO there would be a gap in protection which is counter to the Joint Action, the Convention and the Charter. Secondly it is said that EJ Wade’s conclusion is inadequately reasoned. 92. At paragraphs 62 and 63 EJ Wade held: “62. It is argued that EULEX and/or its HoM are FCO’s agent and so themselves liable under 47B(1A) and capable of making the Second Respondent vicariously liable under 47B(1B). I do not agree because that was not even partly their raison d’etre; whilst FCO contributed to the mission, the mission worked not for the FCO but for the EEAS. The National Contingent Leader was FCO’s agent in Kosovo. 63. EULEX did not identifiably work for FCO in that when the Claimant was in Kosovo: 1. Some of the alleged detriments she suffered were at the hand of non-FCO employees and some of FCO employees. 2. It would not be appropriate for any employee with a British connection to bring a claim against EULEX as agent because EULEX cannot be expected to comply with the Employment Rights Act when working exclusively in Kosovo. If it was obliged to it would also have to comply with the employment law of every other contributing country. 3. Whilst being closely associated with discrimination law the ERA protection of whistle blowers is British law and it is not giving effect to EU principles with which other countries are familiar or bound. 4. EULEX had its own systems for regulating the conduct of secondees and did not run these processes on behalf of FCO. This is all best illustrated by the fact that Mr Meucci as HoM had no role as an agent of FCO; if he was an agent of any country it was of Italy. 93. As discussed above, the General Court’s decision in H was overturned by the CJEU (Grand Chamber). I do not consider that there is any conflict between the conclusions reached by EJ Wade (as set out above) and the decision of the CJEU (Grand Chamber) in H . The case concerned an Italian magistrate seconded to the Mission by Italy and based in Bosnia and Herzegovina. She challenged a decision adopted by the Head of Mission transferring her to another office and brought claims for damages against the Mission (the EUPM), the Council of the European Union and the European Commission in Italy and in Europe. The Council and the Commission both argued that the claim in Europe was inadmissible. The Mission did not respond at all. The CJEU concluded, overturning the decision of the General Court T-271/10 in this regard, that acts of staff management fall within the jurisdiction of the CJEU and are not excluded from review by Article 24(1) TEU and Article 275 TFEU merely by virtue of there being an operational aspect to the activities undertaken that falls within the CFSP. 94. Having reached that conclusion, it was unnecessary to consider the additional grounds of appeal. Instead, the CJEU referred the case back to the General Court. Importantly however it dismissed the action against the Mission as inadmissible and referred the case back only in respect of actions directed against the Council of the EU. So far as the Council of the EU was concerned, at paragraphs 65 – 68, the CJEU set out the precise basis on which attribution arose: the contested decisions were adopted by the Head of Mission appointed by the Political and Security Committee (the PSC); by virtue of express provisions of the relevant joint action the PSC exercised political control and strategic direction of the Mission under responsibility of the Council; on that basis the contested decisions were attributable to the Council. The question whether those decisions were unlawful or capable of giving rise to damages from the Council was described as raising complex questions of fact on the basis of matters which had not been examined by the General Court and not debated before the CJEU and so had to be referred back. 95. Nor do I accept that there was any other error of law in the conclusions at paragraphs 62 and 63 of the Judgment as the Claimant asserts. None has in fact been identified. Mr Milsom has not explained why English law applies in the absence of extraterritorial jurisdiction in relation to Mr Meucci. In any event, EJ Wade permissibly held that while the FCO contributed to the Mission by sending staff to it, the Mission worked for the EEAS and not for the FCO (or the other 27 Member States). 96. This ground accordingly fails. Ground 4: Territorial jurisdiction over the individual named Respondents 97. This ground is directed at challenging the Tribunal’s conclusion that there is no territorial scope in relation to the two individual Respondents, Ms Fearon and Mr Ratel, seconded by the FCO to work for EULEX in Kosovo. 98. The claims against them are pursued under s. 47B(1A) and s. 48(1A) ERA. The former affords a qualifying worker, W, the right not to be subjected to detrimental treatment 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; the latter gives W the right to present a claim to a tribunal against the other worker on this basis. Anything done by the worker complained of is also treated as done by the worker’s employer: see s. 47B(1B). Complaints in respect of detriments can be pursued by a worker against both the fellow worker and the employer of that worker. The Claimant alleges that Ms Fearon and Mr Ratel subjected her to unlawful detriments in the course of their employment by the FCO because she made protected disclosures. For example, Mr Ratel is said to have commenced a series of investigations into her conduct and Ms Fearon is said to have recommended suspension of the Claimant without any investigation. 99. In this regard EJ Wade held as follows: “53. It is new territory to decide whether there is jurisdiction against individual Respondents who happen to be FCO employees. The inescapable fact is that although they were FCO employees, for the purpose of this mission they were not domiciled in the UK or based there for work purposes. They are more accurately described as “citizens of the world” who happened to have British nationality and to be under contract to the FCO. I did not ask whether some of the FCO secondees were not UK citizens but this seems theoretically possible. 54. As Respondents their stronger connection was to EULEX but this is of secondary importance because the “stronger connection” test relates to claimants based overseas and not respondents. This means that the fact that they are respondent FCO secondees over whom the Tribunal has no jurisdiction does not directly conflict with fact that Ms Bamieh as claimant has a sufficiently strong connection with the same organisation, although at first glance to situation seems very odd. Indeed as claimants they could do the same as Ms Bamieh because of Article 10(2). I was uncomfortable that the could be outside scope when they and the Claimant are all fellow employees of FCO but as individual respondents their base was in the international world that was EULEX not the territorial bubble of the UK. 55. To illustrate this it can be seen from the Particulars of Claim that complaints against Ms Fearon arise because of her role as advisor to the Italian HoM and that she saw her role as supporting him and not as an instrument of FCO. There is an email in which she talks about how the FCO will probably go along with a decision if it is correctly presented. Whilst they were both workers of FCO her relationship with the Claimant was not founded up on this. 56. Further, it would be anomalous to make some individual EULEX colleagues liable and some not, for example one of the Claimant’s line managers and not the other; the claim against Ms Novotna was withdrawn as quite rightly the Claimant concedes that there is no jurisdiction. 57. Another important point is that Article 10(2) does not appear to give this Tribunal jurisdiction over individual respondents in any event. It says “The state…Having seconded a member of staff shall be responsible for answering any claims”
. Individual Respondents are not in scope and since jurisdiction is derived from Article 10(2) claims against the Second Respondent only can proceed. Having a common employer which is the UK government is not enough to bestow jurisdiction. 100. Having dealt with the liability of these individuals as principals and concluded that they were outside territorial scope as named Respondents, EJ Wade addressed the possibility of the FCO being vicariously liable for their actions nonetheless, at paragraphs 58 to 61, but reached no conclusions on this issue. Instead she directed that this argument should be dealt with at the full merits hearing once the facts had been found. 101. Mr Milsom is critical of the Employment Tribunal’s approach to the question of vicarious liability. In my judgment his criticisms are misplaced. As EJ Wade observed, the FCO’s argument that it cannot be vicariously liable for anything but the legal wrongs of a co-worker or agent may well be defeated by the terms of s.47B(1B) ERA which provides that where a worker is subjected to detriment by “ anything done as mentioned in subsection (1A) [the right not to be subjected to detriment by another] that thing is also treated as done by the worker’s employer” (emphasis added). The question of vicarious liability is highly fact sensitive and the question of statutory construction raised by the FCO’s argument was not the focus of the preliminary hearing. In the circumstances, I consider that EJ Wade was both entitled and correct to adjourn consideration of this fact-sensitive issue to the full merits hearing where the facts will be found and the question of vicarious liability can be addressed in their proper factual context. Mr Milsom’s criticisms are accordingly not further addressed. 102. The Notice of Appeal challenges EJ Wade’s conclusions (at paragraphs 53-57) on the basis that once it is accepted that the Claimant’s claims against the FCO are within territorial scope, the same must apply as regards claims against her colleagues. Their contracts impose enforceable obligations in the UK and there is no alternative jurisdiction. That is why Article 10(2) of the Joint Action provides that all claims arising from the secondment must be heard in the seconding state. Further, it is said that the Tribunal erred in failing to apply by analogy the comparative test on jurisdiction, namely whether the link to the UK is stronger than any other jurisdiction. Had it done so it could only have reached the conclusion that any claim against the Claimant’s fellow workers could only have been heard in the UK. There are three further points relied on as indicating that the Tribunal mischaracterised the evidence and failed to take account of relevant considerations (see paragraph 23 of the Notice of Appeal). 103. Mr Milsom has identified no supporting authority for the proposition that once the Claimant established her claim against the FCO as within territorial scope, the same must follow in respect of claims against her fellow workers as a matter of law and without applying a fresh territorial test. His alternative argument, that the Claimant satisfies the territorial test in relation to the individual Respondents has more legs and proceeds on the basis of conventional principles. 104. I start with the conventional principles for addressing the territorial reach of the ERA, recognising that they have been developed and applied in relation to ‘employer’ respondents and not co-workers of the same employer who have potential liability for detriments on the grounds of protected disclosures under s.47B(1A) ERA.[105]The conventional principles are not in dispute. In Lawson v Serco Ltd [2006] ICR 250 Lord Hoffmann explained that the ERA contained no geographic limitation but it was inconceivable that Parliament intended it to confer rights on employees working abroad and having no connection with Great Britain . Since legislation is prima facie territorial, some territorial limitation had to be implied. The paradigm case for the application of the ERA is an employee working in Great Britain, so that the circumstances in which British labour law would apply to an employee working and based abroad would have to be unusual. 106. The principle underlying the unusual or exceptional cases identified in Lawson , was described by Baroness Hale JSC in Duncombe v Secretary of State for Children Schools and Families (No 2) [2011] UKSC 36 as follows:
“8. It is therefore clear that the right [to claim unfair dismissal under the ERA will only exceptionally cover employees who are working or based abroad. The principle appears to be that the employment must have much stronger connections both with Great Britain and with British employment law than with any other system of law. There is no hard and fast rule and it is a mistake to try and torture the circumstances of one employment to make it fit one of the examples given, for they are merely examples of the application of the general principle.” 107. In Ravat v Halliburton Manufacturing and Services Ltd [2012] ICR 389 , in the context of an unfair dismissal claim by a British national and resident individual working for a British company in Libya, the Supreme Court reiterated the relevant principles, restating the starting point that the ERA has no application to work outside Great Britain and is intended to cover employment in Great Britain only unless there is a sufficiently strong connection with Great Britain and British employment law to enable it to be said that Parliament would have regarded it as appropriate for a British employment tribunal to deal with the claim. In a case where the individual works wholly abroad, Lord Hope held that: “27. …the starting point needs to be more precisely identified. It is that the employment relationship must have a stronger connection with Great Britain than with the foreign country where the employee works. The general rule is that the place of employment is decisive. But it is not an absolute rule. The open-ended language of section 94(1) leaves room for some exceptions where the connection with Great Britain is sufficiently strong to show that this can be justified. The case of the peripatetic employee who was based in Great Britain is just one example. The expatriate employee, all of whose services were performed abroad but who had nevertheless very close connections with Great Britain because of the nature and circumstances of employment, is another. 28. The reason why an exception can be made in those cases is that the connection between Great Britain and the employment relationship is sufficiently strong to enable it to be presumed that, although they were working abroad, Parliament must have intended that section 94(1) should apply to them. The expatriate cases that Lord Hoffmann identified as falling within its scope were referred to by him as exceptional cases: para 36. This was because, as he said in para 36, the circumstances would have to be unusual for an employee who works and is based abroad to come within the scope of British labour legislation. It will always be a question of fact and degree as to whether the connection is sufficiently strong to overcome the general rule that the place of the employment is decisive. The case of those who are truly expatriate because they not only work but also live outside Great Britain requires an especially strong connection with Great Britain and British employment law before an exception can be made for them. 29….The question whether, on given facts, a case falls within the scope of section 94(1) is a question of law, but it is also one of degree. …… The question of law is whether section 94(1) applies to this particular employment. The question of fact is whether the connection between the circumstances of the employment and Great Britain and with British employment law was sufficiently strong to enable it to be said that it would be appropriate for the employee to have a claim for unfair dismissal in Great Britain.” 108. In Duncombe this test was applied in the context of teachers employed by the British Government to teach in an international enclave abroad in order to fulfil the obligations which the Government had undertaken to other EU states under the Statute of the European Schools. The Supreme Court concluded that this was an exceptional case where the employment had such an overwhelmingly closer connection with Britain and with British employment law than with any other system of law that it was right to conclude that Parliament must have intended that the employees should enjoy protection from unfair dismissal: “16.In our view, these cases do form another example of an exceptional case where the employment has such an overwhelmingly closer connection with Britain and with British employment law than with any other system of law that it is right to conclude that Parliament must have intended that the employees should enjoy protection from unfair dismissal. This depends upon a combination of factors. First, as a sine qua non, their employer was based in Britain; and not just based here but the Government of the United Kingdom. This is the closest connection with Great Britain that any employer can have, for it cannot be based anywhere else. Second, they were employed under contracts governed by English law; the terms and conditions were either entirely those of English law or a combination of those of English law and the international institutions for which they worked. Although this factor is not mentioned in Lawson v Serco , it must be relevant to the expectation of each party as to the protection which the employees would enjoy. The law of unfair dismissal does not form part of the contractual terms and conditions of employment, but it was devised by Parliament in order to fill a well-known gap in the protection offered by the common law to those whose contracts of employment were ended. Third, they were employed in international enclaves, having no particular connection with the countries in which they happened to be situated and governed by international agreements between the participating states. They did not pay local taxes. The teachers were there because of commitments undertaken by the British government; the husbands, in Wallis and Grocott , were there because of commitments undertaken by the British government; and the wives were there because the British government thought it beneficial to its own undertaking to maximise the employment opportunities of their husbands' dependants. Fourth, it would be anomalous if a teacher who happened to be employed by the British government to work in the European School in England were to enjoy different protection from the teachers who happened to be employed to work in the same sort of school in other countries; just as it would be anomalous if wives employed to work for the British government precisely because their husbands were so employed, and sacked because their husbands ceased to be so employed, would be denied the protection which their husbands would have enjoyed 17. This very special combination of factors, and in particular the second and third, distinguishes these employees from the "directly employed labour" of which Mrs Bryant was an example. …..” 109. The starting point in considering whether the Employment Tribunal has territorial jurisdiction in respect of claims made by the Claimant against her fellow FCO-seconded workers under the ERA is that ordinarily the statute has no application to work outside Great Britain. Parliament would not have intended the ERA to apply unless there was a sufficiently strong connection with Great Britain and British employment law. That starting point must therefore be displaced by the sufficiently strong connection said to exist before extraterritorial jurisdiction can be said to be established. 110. The primary factual feature relied on by EJ Wade as leading to the conclusion that territorial scope was not established in respect of Ms Fearon and Mr Ratel, was the fact that they were “not domiciled in the UK or based there for work purposes” (paragraph 53). EJ Wade concluded that they had a stronger connection with EULEX but regarded this as of secondary importance, because the “stronger connection” test relates to claimants based overseas and not respondents. 111. Leaving aside EJ Wade’s reference to ‘domicile’ (which was introduced by the Respondents who appear wrongly to have treated it as synonymous with where the individual is based) and focusing on her apparent conclusion that a foreign base was dispositive of the territorial question, I consider this to reflect an error of law both because this is not dispositive as a matter of law and because their base abroad is not determinative as a matter of fact. Although the “stronger connection” test has hitherto been applied to claimants based overseas and not to respondents, it seems to me that the same test must be applied by analogy. A foreign base and employment, though usually decisive can be overcome where the connection with Great Britain and British employment law is sufficiently strong. I therefore reject the arguments advanced by Mr Keen and Mr Collins that an individual “must be domiciled in the UK to be made a party to proceedings”; and that merely because none of the individual Respondents were based in the jurisdiction when the claim was presented, no claims under the ERA can be brought against any of them. (In any event and to the extent relevant, given her reference to domicile in the context of determining where Ms Fearon and Mr Ratel had their base, I am not confident that she approached the question of their base correctly. Domicile is different from residence, and harder to shed. Individuals can live (and be resident) for many years outside the country of their birth and domicile, without changing that domicile at all. Although resident abroad, both Mr Ratel and Ms Fearon retained their British citizenship and passports; both worked for the UK government and both quite possibly retained their English domiciles.) 112. Although Baroness Hale referred to the Duncombe claimants’ employer’s base in Britain as a “sine qua non” at paragraph 16, I do not read her judgment as identifying this as a proposition of law; nor did she treat it as dispositive or even the only consideration in that case. Indeed she held at paragraph 9: “9. ……The principle appears to be that the employment must have much stronger connections both with Great Britain and with British employment law than with any other system of law. There is no hard and fast rule and it is a mistake to try and torture the circumstances of one employment to make it fit one of the examples given, for they are merely examples of the application of the general principle.”
[113]Likewise, Lord Hoffmann in Lawson v Serco held that it would be “ unlikely that someone working abroad would be within the scope [of the ERA] unless working for an employer based in Great Britain”, but did not state that this would be dispositive or elevate this to a principle of law. In the context of an exercise that involves questions of fact and degree that would have been surprising. As Ravat (at para 29) makes clear, the question whether a case falls within the scope of the ERA is a question of fact and degree. H ere, it is not in dispute that both Ms Fearon and Mr Ratel had a British-based employer in common with the Claimant. The question in their cases was whether the fact of their employment and residence abroad was decisive. 114. In my judgment, the question of the territorial reach of the detriment provisions in s.47B(1A) ERA required an assessment of the sufficiency of the connections between each individual Respondent and Great Britain and British employment law by analogy with the approach required to be adopted where the employer is the only respondent. The question was not conclusively determined by reference to their base; and nor was it relevant to consider the individual Respondents’ connections to EULEX (as opposed to another system of law and jurisdiction such as Kosovo). For the same reasons as those just given, I reject Mr Milsom’s argument that as a matter of law once territorial jurisdiction is established in relation to the FCO, it follows as a matter of law that there is territorial jurisdiction in relation to the FCO co-workers. These are, as already stated, questions of fact and degree that require careful assessment, and no single factor is determinative. 115. The consequence of EJ Wade treating her conclusion that the FCO employees were not domiciled or based in the UK for work purposes as dispositive is that she did not conduct the assessment required of the extent and sufficiency of the connections between them and Great Britain and British employment law. That is the assessment that should have been carried out. The Claimant contends that had she done so, the only available conclusion is that territorial jurisdiction extends to the Claimant’s claims against them, just as it does to the FCO. 116. It seems to me in light of the facts found that the following factors are relevant to this assessment. First, both Ms Fearon and Mr Ratel were at all material times working pursuant to a series of secondment contracts with the FCO in Kosovo. Their own contracts of employment were with the UK Government (a factor described in Duncombe so far as employer is concerned, as the closest connection there could be with Great Britain because the employer could not be based anywhere else). They were required to conduct themselves consistently with their position as representatives of Her Majesty’s Government. They were bound by the terms of the Official Secrets Act 1989. They were, and were required to be, UK passport holders. Secondly, they were employed under contracts governed by English law, described as a relevant factor in Duncombe , because relevant to the expectation they would have had as to the application of provisions in the ERA to them. In particular, just as the Claimant is entitled to the protection of the ERA in relation to her employer the FCO because of her sufficiently close connections with Great Britain and British employment law, Ms Fearon and Mr Ratel would be entitled to that same protection if subjected to treatment capable of being challenged under the ERA. It is difficult to see why their expectation would or should be different in relation to claims made against them under the ERA. Thirdly, it seems to me there is an analogy or at least a strong similarity between EULEX and the international enclaves in which the Duncombe claimants were employed, which had no particular connection with the countries in which they happened to be situated and were governed by international agreements between the participating states. Just as in that case (and on the assumption that their contracts were in materially identical terms to the Claimant’s contracts with the FCO), Ms Fearon and Mr Ratel were treated differently from locally employed members of staff. They were paid by the FCO and remained under the authority of the FCO albeit required by their FCO contracts to carry out their duties following the Mission chain of command and to act in the sole interest of the Mission (see paragraph 17 of the Judgment). Disciplinary action against them was to be exercised by the FCO, with the National Contingent Leader sent by the FCO representing FCO seconded staff in the Mission and responsible for their discipline (see paragraph 18 of the Judgment). The final decision to dismiss or suspend in their cases would be taken by the FCO (see paragraph 19) and although obliged (again by their FCO contracts) to take lawful instructions from managers appointed in respect of the FCO seconded staff by EULEX, there was also a loose reporting line to the FCO through the National Contingent Leader (paragraph 24). Fourthly, Article 10(2) of the Joint Action itself recognises the connection between seconded members of staff and their sending state, attributing or maintaining responsibility for answering claims linked to the secondment, from or concerning the seconded member of staff, in the sending state. 117. On the other hand, the work carried out by both Mr Ratel and Ms Fearon was carried out wholly outside the UK and wholly in Kosovo. Neither Mr Ratel nor Ms Fearon were resident in the UK. Ms Fearon had worked outside the UK since 2009, albeit spending some months in the UK. Mr Ratel spent very little time in the UK in the last seven years. EJ Wade found that Ms Fearon was paid in sterling and paid national insurance contributions but was not UK resident for tax purposes (see paragraph 29 of the Judgment). EJ Wade did not make findings in this regard in relation to Mr Ratel. 118. Three other features are identified by EJ Wade as supporting her conclusion that there was no territorial scope in relation to these two individuals. For the reasons given below, I do not consider that they provide the support she identified:(a) EJ Wade considered it relevant that although both Ms Fearon and the Claimant were workers of the FCO, the Claimant’s relationship with Ms Fearon was not founded on this (see paragraph 55 of the Judgment). To the extent that this reflects her understanding that the question to be asked was whether the employment relationship between Ms Fearon and the Claimant had an especially close connection to Great Britain and British employment law for it to be said that Parliament would have regarded it as appropriate that claims against Ms Fearon should be brought in the UK (as suggested at paragraph 76 of the EULEX skeleton), I disagree. The individual Respondents are not sued by virtue of their employment relationship with the Claimant under s. 47B (1A) ERA but as co-workers of the FCO in the course of their employment by the FCO. There is no other system of law with which either can be said to be connected, still less closely connected. If as a result of their own especially strong connections with the Great Britain and British employment law it can be said that Parliament would have regarded it as appropriate for an employment tribunal to deal with claims against them under the ERA, that is sufficient to displace the general rule that the place of employment is decisive in determining territorial jurisdiction under the ERA in those circumstances.(b) EJ Wade considered that it would be anomalous for some individuals working in EULEX Kosovo to be within the scope of the ERA while others (like Ms Novotna) were not (see paragraph 56 of the Judgment). I do not see any anomaly. The factors I have identified above at paragraph 115 plainly distinguish Ms Fearon and Mr Ratel from locally employed staff members (no doubt employed under local employment law and paying local taxes) or staff seconded by other Member States (with a closer connection to their own Member State accordingly), who cannot begin to expect to enjoy the same protection or anticipate having the same obligations under British employment law as those working in Great Britain.(c) EJ Wade also appeared to consider that claims could only proceed against the FCO “since jurisdiction is derived from Article 10(2)” and Article 10(2) did not give the Tribunal jurisdiction over the individual respondents accordingly (see paragraph 57). I do not agree. Article 10(2) does not give the Tribunal jurisdiction at all. It attributes responsibility for seconded staff members to the sending state. What gives the Tribunal jurisdiction, if at all, is the ERA in the exceptional circumstances of this case notwithstanding the fact that the work done by the individuals concerned is performed wholly outside Great Britain. 119. The assessment in Duncombe turned on a “very special combination of factors” and in particular that the contracts were governed by English law and that the teachers were employed in “international enclaves, having no particular connection with the countries in which they were situated …” (see [17]). These were facts that distinguished the cases from those where the British national is employed and works at all times outside the UK on local terms and conditions and paid at local rates in the country where the work is done. Just as the fact that the Claimant’s employment was wholly abroad, the work she performed was done under the direction of another body and in another country does not displace the overwhelmingly strong connections with UK employment law in relation to the Claimant herself (as is conceded by the FCO here) it seems to me that the same is true in relation to Ms Fearon and Mr Ratel. All three were employed by the UK Government to discharge the UK’s obligations in European law. EULEX was the means by which those obligations were managed and controlled. Their relationship with EULEX was predicated on their contracts of employment with the UK Government. 120. The same special combination of factors is present in the cases of Ms Fearon and Mr Ratel. Having regard to the factors identified above, this is an exceptional case in which the special combination of factors at paragraph 116 connecting Ms Fearon and Mr Ratel with Great Britain and British employment law are especially strong and no other system of law is, in reality, available. Though they themselves work wholly abroad in Kosovo, their employer is the British Government. It is difficult to see, from the findings of EJ Wade or the material provided to me, what other legal system is available to govern the relationship between the Claimant and her co-workers. EULEX does not operate within Kosovan law and as Mr Milsom submits, s. 4 of the UNMIK Regulation 2000/47 states that UNMIK and KFOR contractors “shall not be subject to local laws or regulations in matters relating to the terms and conditions of their contracts.” 121. Although as the Court of Appeal made clear in Dhunna v CreditSights Ltd [2014] EWCA Civ 1238 at [40]-[41], t he relative merits of any competing systems of law have no part to play in the enquiry because it is not the object of the exercise to decide which system of law is more or less favourable, but rather to decide whether there is an exception from the general rule, the comparative assessment does typically involve comparing the connections with the locations and systems of law which are in play. No alternative system of law is available here. Nor is it suggested that any other jurisdiction governs the relationship between the parties. As EJ Wade found “it does not operate under the legal system of any one country” (para 50 of the Judgment). However, to regard these co-workers as “citizens of the world” (as EJ Wade did at paragraph 53 of the Judgment) with a base “in the international world that was EULEX not the territorial bubble of the UK” (paragraph 54 of the Judgment) is to exempt them from any legal system at all. That is not to impose liability on individuals with no connection with the UK as Mr Keen submits. Nor can it be said that English law cannot have been contemplated by them as the jurisdiction most likely to be available for pursuing their own employment rights arising under or in consequence of their contracts of employment with the FCO; and if the situation arose, for answering employment claims made against them arising under or consequent on those contracts. No other jurisdiction can seriously have been contemplated by them in the circumstances of this case and in light of the facts found by EJ Wade. 122. For all these reasons, I agree with Mr Milsom that the only available conclusion in this case is that territorial jurisdiction under the ERA extends to the Claimant’s claims against Ms Fearon and Mr Ratel as individual named Respondents to her unlawful detriment claims. This ground of appeal accordingly succeeds. Ground 5: The Convention and Charter 123. The relevant provisions of the Convention relied on by the Claimant in this case are Articles 6 and 10. I do not understand there to have been any dispute before the Tribunal that it was under a duty to interpret the ERA and any other applicable legislation compatibly with Convention rights where applicable. Article 6 provides:
“1. In the determination of his civil rights and obligations… Everyone is entitled to a fair and public hearing… by an independent and impartial tribunal established by law…”
There can be no dispute that where it applies, Article 6 implicitly confers a right of access to a court to determine a dispute and not just a right to have it tried fairly. However that right is not absolute and may be restricted where restrictions prescribed by law pursue a legitimate aim by proportionate means that do not impair the essence of a litigant’s rights: see Benkharbouche v Embassy of the Republic of Sudan [2017] UKSC 62 (Lord Sumption JSC at [14]). 124. Article 10 provides:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 125. It is not in dispute that where it applies, Article 10 provides for a qualified right to freedom of expression that has been held to extend to protect workers who make responsible whistleblowing complaints: see Kudeshkina v Russia Application no 29492/05, judgment of 26 February 2009, which held the state to be under a positive obligation to ensure that the right of freedom of expression is protected as between private sector employee and employer: Fuentes Bobo v Spain (2000) 31 EHRR 1115 at [38]; and also Heinisch v Germany [2011] IRLR 922 at [44] and [63]; Matuz v Hungary [2015] IRLR 74 at [26] and [31]-[34] and Rubins v Latvia [2015] IRLR 319 . 126. The Claimant also relies on the following Charter rights: “Article 11: Freedom of expression and information 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” … Article 47: Right to an effective remedy and to a fair trial Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. … Article 52: Scope of Rights and Principles 3. Insofar as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.” 127. Mr Milsom accepts that although the Charter was given direct effect by the adoption of the Lisbon Treaty, it only binds member states when they are implementing EU law: see article 51(1). However, the phrase “implementing EU law” is to be interpreted broadly and in effect, means, whenever a member state is acting “within the material scope of EU law”: see RFU v Viagogo Ltd [2012] UKSC 55 (Lord Kerr at [27-28]). 128. Mr Milsom contends that the Charter is engaged by the Claimant’s case for two reasons: first, the Employment Tribunal was acting “within the material scope of EU law” when interpreting the Joint Action (an EU Council decision). Secondly, in light of the application of Article 10 of the Convention which is a fundamental right and freedom, in circumstances where a derogation from a fundamental right or freedom is put in place by a member state, it must be regarded as “implementing EU law” and acting within the material scope of EU law accordingly: see ERT AE v DEP Case C-260/89 and the AG Opinion in Pfleger Case C-390/12 at paragraphs 44 and 46. 129. In light of the principles summarised above, it is the Claimant’s case that Article 10 of the Convention has wide application and the rights which it guarantees are to be exercised “regardless of frontiers”
. It requires positive state protection for whistle-blowers and affords her a right to an effective remedy against all Respondents in this case for unlawful, detrimental treatment following her whistleblowing complaints. To the extent that domestic law is limited territorially or otherwise, so as to prevent her from pursuing claims under the ERA against any of the Respondents, she claims that the relevant legislation can be interpreted compatibly in accordance with the strong interpretive obligation under s. 3 of the Human Rights Act 1998, so as to afford her a right to a remedy in each case. Alternatively, where the law operates as a bar to any of her claims being pursued without consideration of their merits, this constitutes a breach of Article 6 (and Article 47 of the Charter). Any such bar must be justified by reference to a legitimate aim to which the infringement is proportionate. Although Mr Milsom acknowledges that questions of legal personality cannot be regarded as identical to questions of immunity, he submits that they must nevertheless be justified where they amount to a bar to proceedings. In the absence of justification, disapplication is open given that the implementation of the Joint Action amounts to implementation of EU law in the sense described in Benkharbouche . 130. In relation to the Convention and the Charter, EJ Wade dealt with these points shortly:
“64. In the light of the above neither articles 6 or 10 give the Claimant an extended right to a “European” remedy in Kosovo. Also the EULEX respondents are not contracting parties to the ECHR. The Charter cannot assist as there is no EU right to enforce. 65. I can understand why EULEX does not have a more robust internal disciplinary system, it is a mission and not an institution, but this has left holes and given rise to ironies which arguably should have been avoided”. 131. Mr Milsom submits that these conclusions provide no coherent answer to the Claimant’s case that Convention and Charter rights apply and reflect a number of errors of law. These were not freestanding claims of contravention of those rights and it was unnecessary for the Claimant to establish that Kosovo is a protectorate or part of the EU for the interpretive obligations to apply. Moreover, so far as the territorial scope of either right fell to be considered, EJ Wade erred in law and misapplied the principles established in Al Skeini (2011) 53 EHRR 18 (as applied in Smith v MoD [2013] UKSC 41 ). Further, the Tribunal set a number of thresholds for the application of the Charter and Convention (such as a requirement for the EULEX Respondents to be signatories and concluding that there was no EU right to enforce) which are unsustainable in law. 132. The conclusions I have reached above, that the ERA affords a cause of action in domestic law that extends to the actions of Ms Fearon and Mr Ratel in addition to the FCO, were reached without reference to Convention or Charter rights. Since I have concluded that the whistle blowing provisions of the ERA extend extraterritorially in their cases, it is unnecessary to consider the domestic legislation in light of the Convention and/or the Charter in relation to these Respondents. I note however that in light of the decision in Ravat that it is a question of fact and degree whether an individual working abroad has a sufficient connection with Great Britain to entitle the individual to claim under the ERA, there is no obvious justification for introducing a more generous test of extraterritoriality in cases involving whistleblowing, and respectfully agree with the conclusions reached by Langstaff J in Smania v Standard Chartered Bank [2015] ICR 436 on this point (rejecting similar arguments as those pursued by Mr Milsom on this appeal). 133. The position is different in relation to EULEX (and/or Mr Meucci in his representative capacity as Head of Mission). As a matter of domestic law EULEX has no legal personality as a Mission and the unchallenged finding of EJ Wade is that there is no territorial jurisdiction in respect of EULEX which is based only in Kosovo and staffed by people drawn from many countries. Here, the Claimant’s argument cannot be about the state infringing her right to freedom of expression: the UK state has not done so. It has only allegedly failed to provide her with a particular remedy in the sense of a cause of action. The argument raises the question whether the Convention and/or the Charter can be relied on to extend the Tribunal’s territorial jurisdiction to cover acts or omissions of EULEX in Kosovo thereby affording the Claimant a cause of action that she would not otherwise have. 134. It is common ground that the jurisdiction of the Convention is primarily territorial and that Kosovo is outside Convention territory. Exceptional circumstances are required to found a non-territorial jurisdiction for Convention rights. To date a number of exceptions to this principle have been recognised and developed in the Strasbourg jurisprudence: see Al Skeini v United Kingdom (2011) 53 EHRR 589 (paragraphs 131 to 137) where the ECHR held that as an exception to the principle of territoriality, a contracting state’s jurisdiction under article 1 of the convention may extend to acts of its authorities which produce effects outside its own territory. This may occur where diplomatic and consular agents present on foreign territory in accordance with provisions of international law exert authority and control over others. It may occur where, through the consent, invitation or acquiescence of the government of the other territory, a contracting State exercises all or some of the public powers normally exercised by that government. It may occur where the use of force by a state agents operating outside its territory brings the individual under control of the state’s authorities into the state’s article 1 jurisdiction. 135. In Smith v MoD [2013] UKSC 41 , having discussed the principles summarised above as established by Al Skeini , Lord Hope continued in relation to the judgment in Al Skein : “36. The following words are set out at the end of para 136 which sum up the essence of the general principle: “The court does not consider that jurisdiction in the above cases arose solely from the control exercised by the contracting state over the buildings, aircraft or ship in which the individuals were held. What is decisive in such cases is the exercise of physical power and control over the person in question.” 37. The description of the category of state agent authority and control concludes with an important statement in para 137. It is in these terms: “It is clear that, whenever the state through its agents exercises control and authority over an individual, and thus jurisdiction, the state is under an obligation under article 1 to secure to that individual the rights and freedoms under section 1 of the convention that are relevant to the situation of that individual. In this sense, therefore the convention rights can be “divided and tailored”.”
I do not read the first sentence of this para as adding a further example to those already listed in paras 134 to 136. No further cases are cited in support of it, which the court would have been careful to do if that were the case.” Lord Hope explained (at paragraph 49) that the concept of “dividing and tailoring” goes hand-in-hand with the principle that extraterritorial jurisdiction can exist whenever a state through its agents exercises authority and control over an individual. He explained that the court need not now concern itself with the question whether the state is in a position to guarantee Convention rights to that individual other than those it is said to have breached. 136. On this appeal, the Claimant relies solely on the state agent authority and control principle as regards the role of EULEX in parts of state activity, namely the conduct of criminal trials, apparently (correctly) accepting that EULEX and Mr Meucci are not diplomatic or consular agents of the UK, and nor are Ms Fearon or Mr Ratel such agents. She contends that Kosovo ceded control over the conduct of criminal trials and its “supervised independence” was monitored by the EU which retained “executive responsibilities” over the administration of justice. Since that was the arena in which the Claimant’s Convention rights were engaged that was sufficient to engage the Convention rights relied on. 137. This argument is misconceived. As was made clear in Al Skeini , the mere involvement of state agents is not enough. What they do must amount to the exercise of authority and control, and what is decisive in such cases is the exercise of physical power and control over the person in question. The effective control of an area as the foundation for an extension of the territorial jurisdiction of the Convention cannot arise unless the member state acting outside the legal space of the Convention has such a degree of control of an area or over the person that it acquires the capacity to determine or control events there or is in a position to secure the relevant Convention right relied on. I can see no basis for the submission that Kosovo ceded control over the conduct of criminal trials to the UK or the EU, but even if it did, t he Claimant is not the subject of a criminal trial in Kosovo so that even if control over the conduct of criminal trials has been ceded to the EU (or the FCO) through EULEX, it is unclear how that relates to the exercise of control over the Claimant herself. No state control is being exercised. The FCO does exercise some limited control over the Claimant as employer but the argument is unnecessary in relation to the FCO, and to the extent that EULEX exercises day to day line management over the Claimant, that is not state control and is insufficient. 138. In any event, these are questions of fact and degree and compelling evidence would have been required to establish that either the FCO or the EU exercised the required authority and control in Kosovo. The Tribunal’s findings of fact do not provide any support for this argument. For example, EJ Wade found that Kosovo, despite its desire for a closer connection with the EU, was not an EU controlled territory (paragraph 9 of the judgment); the EEAS was responsible for the planning and conduct of EULEX but EULEX is not a branch or part of the EEAS and there is no direct relationship between EULEX and the EEAS (or the FCO) (paragraphs 11 and 12); EULEX is based in Kosovo and has no other branch and its staff are drawn from outside the EU (paragraphs 13 and 15); the mandate of EULEX as set out at Article 2 of the Joint Action makes clear that its main mandate is to assist the Kosovo institutions in their progress towards a sustainable, independent multi-ethnic justice system and police and customs service and not to take over and operate or control a Kosovan state activity (paragraph 13); the objective of the signatories of the Joint Action was that EULEX would not be the employer, de facto or legally of its seconded staff (paragraph 19). 139. On those findings (which were open to EJ Wade and not arguably perverse) it is clear that there is no sufficient factual basis for a conclusion that state agents of the UK or the EU (through EULEX) were in a position to secure the Claimant’s Article 10 rights in Kosovo or exerted control and authority over the Claimant to a sufficient extent so as to engage their Convention obligations in Kosovo. In those circumstances, I can see no proper basis for concluding that EJ Wade’s decision that Kosovo was not under the state control of the UK was in error of law or perverse. The Claimant did not establish that either the FCO or the EU (through EULEX) exercised the required authority over Kosovo or the Claimant. 140. This conclusion means that the Claimant has no cause of action against EULEX in Kosovo in respect of which Article 6 rights can bite, and it is therefore unnecessary to deal with arguments raised by reference to Benkharbouche which do not arise. 141. Mr Milsom concedes that if the Convention does not apply in Kosovo then the Charter cannot assist. He is correct to do so. The jurisdictional reach of Article 11 of the Charter is not greater than Article 10 of the Convention. In light of my conclusion that the Convention does not apply to extend jurisdiction extraterritorially to Kosovo, and since the Charter does not extend the scope of Convention rights, reliance on the Charter cannot confer jurisdiction where none would otherwise exist under domestic law: see to this effect Zagorski v Secretary of State for Business Innovation And Skills [2011] HRLR 6 . 142. The absence of a right and remedy within Kosovo is not a basis for extending the Convention obligations of the UK or the EU to Kosovo. In any event, the Claimant is not without a remedy. Domestic legislation in the ERA provides her with protection from detriment (including a remedy for unfair dismissal) for whistleblowing and the FCO and Ms Fearon and Mr Ratel are all within its territorial scope. 143. For all these reasons, I do not consider that EJ Wade erred in law in concluding that neither the Convention nor the Charter assist the Claimant in this case. Conclusion 144. In the course of lengthy written and oral argument all sides made many legal points and referred to many authorities. This is an already over-long judgment, but I have sought to deal with what I consider to be the principal points raised in relation to the many points taken in relation to the grounds of appeal and cross-appeal. All sides can be assured that I have considered all the points made and all the authorities relied upon, even where no specific reference is made to them. 145. For the reasons given above: (a) Ground 1 is dismissed: EULEX has no domestic legal personality and cannot be sued in this jurisdiction accordingly. (b) Ground 2 is dismissed: EJ Wade made no error of law in concluding that EULEX is not the Claimant’s employer. (c) Ground 3 is dismissed: EJ Wade made no error of law in concluding that there was no jurisdiction in the Tribunal over EULEX and/or Mr Meucci as agent of the FCO. (d) Ground 4 is allowed: there is extraterritorial jurisdiction under the ERA in respect of the whistleblowing detriment claims pursued by the Claimant against Ms Fearon and Mr Ratel. (e) Ground 5 is dismissed: the Convention and the Charter do not assist the Claimant in this case. 146. Save to the extent set out at paragraph 145 (d), the appeal is dismissed. The claim against the FCO, Ms Fearon and Mr Ratel can now proceed to a hearing in the Employment Tribunal.