Italian Banker Working in Singapore Not Covered by UK Whistleblowing Protections

An employment tribunal did not have jurisdiction to hear a whistleblowing detriment and automatic unfair dismissal claim brought by an Italian banker working in Singapore. 

In Smania v Standard Chartered Bank, S, an Italian national working in Singapore, alleged financial malpractice by the bank and was dismissed. He attempted to bring whistleblowing claims in the UK for detrimental treatment and unfair dismissal as a result of making protected disclosures. The only connection with the UK was that the bank had its head office here. 

The employment tribunal ruled that it did not have jurisdiction to hear the claims. It applied the test in Ravat v Halliburton and considered that the connection with Great Britain was not sufficiently strong for it to be said that Parliament would have regarded it as appropriate for a tribunal to deal with his claim. 

S appealed to the Employment Appeal Tribunal (“EAT”), arguing that a “looser” test should apply to whistleblowing claims. In addition, the employment tribunal had failed to consider what Parliament might have intended. Malpractice within a UK bank could have far-reaching effects on the UK and the right of UK citizens to know of malpractice should be given effect to where possible. 

The EAT dismissed the appeal and ruled that the Ravat test applies to the automatic unfair dismissal and detriment provisions in the Employment Rights Act 1996 (“ERA”) in the same way as it applies to ordinary unfair dismissal claims. There was no reason to treat cases of automatic unfair dismissal any differently. In addition, there was nothing in the ERA to suggest that the financial sector should be singled out for special treatment on the basis that there was a public interest in the UK in complaints about malpractice relating to UK banks being heard by UK citizens. 

It is helpful to have confirmation from the EAT that the same jurisdictional test applies for whistleblowing claims and ordinary unfair dismissal claims. However, the EAT did not rule out the possibility that some rights under the ERA might have a wider territorial application if there is a reasoned basis for this. This might be the case where the ERA right derives from an EU directive and it is necessary to extend the jurisdictional test in order to give effect to that right.