Clyde & Co. LLP &
Anor v. Krista Bates van Winkelhof [2012] EWCA Civ 1207.
In February 2010 Krista Bates van Winkelhof – an English
qualified solicitor - became equity partner of Clyde after the firm merged with
City firm Shabdbolt. Bates van Winkelhof had been working for Shadbolt on
secondment in Tanzania with local firm Ako Law. In November 2011, allegations
of money laundering were raised by Bates van Winkelhof against an Ako Law
managing partner. Two months later, on 13 January 2011, she was dismissed.
Bates van Winkelhof accordingly brought a whistleblowing
complaint against Clyde & Co. pursuant to section 47B of the Employment Rights
Act 1996 (ERA 1996), on the grounds that she made a protected disclosure
against the senior partner of Ako Law; as well as an unlawful sexual
discrimination claim in support of allegations that her dismissal was related
to her pregnancy.
In July 2011, the Employment Tribunal held it did not have
jurisdiction to hear the case because Bates van Winkelhof was not a ‘worker’
within the meaning of section 230(3) ERA 1996 – i.e. a contracted employee. A ruling by the Employment Appeals Tribunal
overturning this decision, culminated with the case being brought before the
Court of Appeal. Giving the main judgment of the Court, Lord Justice Elias held
that a partner in an LLP was not a
worker for the purposes of the ERA 1996, and therefore the Court had no
jurisdiction to hear the whistleblowing claim.
In giving judgment, Lord Justice Elias stated there were two
inter-related reasons why a partner cannot have an employee/worker 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.
"’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 that a member of an LLP - who would have been a
partner under the Partnership Act 1890 if the company had not been registered
as an LLP - can be neither an employee nor contracted worker within the meaning
of Section 230 of the ERA 1996. The claimant therefore cannot pursue her
whistleblowing claim.
Ms. Bates van Winkelhof is however able to continue her
claim of sexual discrimination. The Court of Appeal accepted the lower tribunal’s
ruling that she has sufficient connection to the UK for the employment tribunal
to have territorial jurisdiction.
Read the judgment here.