Limited Liability Partnership Members Classed As ‘Worker’ in Landmark Whistleblowing Case

In the case of Clyde & Co LLP and another v Bates van Winkelhof [2014] UKSC 32, the Supreme Court has confirmed that for the purpose of whisteblowing protections in the Employment Rights Act 1996, a member of a Limited Liability Partnership (LLP) can be classed as a ‘worker.’ This was confirmed on 21st May, following a three year legal battle.

In this particular case a protected disclosure was  made relating to the Managing Partner of an Associate Firm, who had admitted to paying bribes in order to secure work as well as the  outcome of cases. The claimant Krista Bates van Winklehof  was a former Partner at Clyde & Co who alleged that she lost her job in 2011 following her protected disclosure. Ms Bates van Winklehof also brought complaints of sex discrimination and pregnancy discrimination at the Employment Tribunal.

As the cliamant was a Partner at the firm, the Respondents argued that she could not be treated as a ‘worker,’ and therefore had no protection under the Employment Rights Act cited above. This was ruled by the Court of Appeal in September 2012.

The Supreme Court overturned the Court of Appeal judgement and discussed the following in their summary;

section 230(3) of the 1996 Act defines two sorts of worker for the purpose of that Act. Limb (a) covers an individual who has entered into, works under or has
worked under “a contract of employment”. No one has suggested that the contract between the member and the LLP in this case was a contract of employment. The question is whether the member falls within limb (b) of section 230(3), which covers an individual who has entered into or works under or worked under ;

any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.

http://supremecourt.uk/decided-cases/docs/UKSC_2012_0229_Judgment.pdf.
Cathy James, Chief Executive of Public Concern at Work also said:

“This is an incredibly important ruling from UK’s highest court and means that a large number of professionals who are members of LLPs are now covered by the law that protects whistleblowers, the Public Interest Disclosure Act. In the light of recent scandals in banking and other sectors it is important that all professionals are empowered to speak up where they come across any fraud, risk or danger and to be protected when they do so.”

“We hope that the uncertainty surrounding so called ‘ordinary’ partnerships is cleared up by the Government as soon as possible. This is something that is within easy reach as the Secretary of State has a power to amend these provisions by statutory instrument. With such a strong lead from the Supreme Court we would expect to see amending provisions in the very near future.”

This could prove particularly beneficial as members of LLPs, who could include accountants and solicitors are often most likely to become aware of wrongdoing at work.

Whilst every effort has been made to maintain accuracy throughout this article, Nationwide Employment Lawyers cannot accept responsibility or liability for any errors. This article is intended for guidance purposes  only and does not constitute specialist legal advice. Nationwide Employment Lawyers accept no responsibility or liability whatsoever for any action taken or not taken in relation to this article and recommend that appropriate legal advice be taken in all circumstances.

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