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Sacked Clyde partner allowed to appeal whistleblowing ruling

Partner not a worker under employment law terms, Court of Appeal said

13 March 2013

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By Manju Manglani, Editor (@ManjuManglani)

A former partner at international law firm Clyde & Co has been granted permission to appeal to the UK's Supreme Court against a ruling that she was not protected under whistleblowing legislation.

Krista Bates Van Winklehof, an equity partner with the firm, was based principally in Tanzania where she was employed by local firm Ako Law under a joint-venture agreement.

She was sacked from Ako Law in November 2010 after reporting her concerns that the firm’s managing partner had been involved in money laundering and had paid bribes to get work and influence the outcome of cases.

The Court of Appeal found in September last year in Clyde & Co and John Morris v Bates van Winklehof [2012] EWCA Civ 1207 that, as a partner in an LLP, she could not be considered a ‘worker’ in employment law terms.

Last week a panel of three Supreme Court justices – Lords Neuberger, Mance and Wilson – granted Van Winklehof permission to appeal against the appeal court’s findings in relation to whether LLP members who whistleblow are protected by the Public Interest Disclosure Act 1998.

The panel refused a linked appeal on a geographical jurisdiction brought by Clyde & Co challenging the Court of Appeal’s decision that the tribunal had been correct in applying the Ravat test on the determination of jurisdiction in cases with a foreign element.

Lord Justice Elias, who gave the lead decision in the Court of Appeal, upheld the tribunal findings that although Van Winklehof had been working mostly out of Tanzania, the English courts had jurisdiction to hear her claim because there was “a sufficient connection”.

The lawyer brought proceedings after she was expelled from the partnership in January 2011, claiming that the disclosures were ‘protected’ under the Employment Rights Act 1996.

Elias LJ’s judgment followed the decision by the same Court of Appeal in Tiffin v Lester Aldridge that a partner sharing in the profits of the firm was not an employee.

Elias LJ said there were two inter-related reasons why partners cannot have employee status.

“The first is legal: since the partnership is not a separate legal entity, the parties are in a relationship with each other and accordingly each partner has to be employed, inter alia, by himself. He would be both workman and employer which is a legal impossibility,” he said.

The former EAT president went on: “The second reason is more sociological. The very concept of employment presupposes as a matter of sociological fact a hierarchical relationship whereby the worker is to some extent at least subordinate to the employer.

He concluded: “Where the relationship is one of partners in a joint venture, that characteristic is absent. Each partner is agent for the other and is bound by the acts of the other and each partner is both severally and jointly liable for the liabilities of the partners. The partnership concept is the antithesis of subordination.”

Van Winklehof brought a separate claim for unlawful sex discrimination against the firm and the senior partner involved in her expulsion, which was allowed to proceed.

The claim, which includes allegations of pregnancy-related discrimination, has been brought under the Equality Act 2010.

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