‘Whistleblower’ van Bates Winkelhof can take Clyde & Co LLP to Employment Tribunal

The Supreme Court has ruled that a former equity partner at the law firm Clyde & Co LLP can take her former employer to an Employment Tribunal in a “whistleblowing” claim after she was found to be a “worker” rather than self-employed.

Krista van Bates Winkelhof worked as an equity partner for Clyde & Co LLP when she contends that she made the firm aware that its Tanazanian associate firm’s managing partner was potentially laundering money and guilty of bribery and corruption. She alleges that after she made the firm aware of this fact she was dismissed from her position, subsequently bringing a claim in the Employment Tribunal for sex discrimination (under the Equality Act 2010) and automatic unfair dismissal (under the Employment Rights Act 1996). Ms Bates van Winkelhof’s “whistleblowing” claim was struck out as having no reasonable prospect of success by an Employment Judge as she was adjudged not to be a “worker” for the purposes of s.203(3) of the Employment Rights Act 1996.

Since its rejection by the Employment Tribunal, the case has wound a lengthy way through the appeal courts and the Supreme Court last week held (by a majority of 3 to 2) that equity partners are in fact “workers” for the purposes of the Employment Rights Act 1996. Lady Hale (who gave the leading judgment) stated that this was so as Ms Bates van Winkelhof could not market her services to other law firms, was an integral part of the law firm’s business, and that the law firm was in no sense Ms Bates Van Winkelhof’s client or customer. The case has now been remitted to the Employment Tribunal so that it can be determined whether the former equity partner was discriminated against and/or dismissed because she made protected disclosures as she alleges.

Joanna Blackburn, the solicitor instructed by Ms Bates van Winkelhof to pursue her claim, commented on the result: “We are delighted that the UK Supreme Court has endorsed our view that the law does protect partners in LLPs and we are pleased that after more than three years of legal wrangling, Ms Bates van Winkelhof’s claims can finally be heard in the Employment Tribunal.”

Chris Hadrill, an employment solicitor at Redmans, commented on the case: “This is an important but unsurprising judgment by the Supreme Court – the alternative conclusion would have meant that equity partners in an LLP would potentially be deterred from making protected disclosures for fear that they would be victimized as a result and have no legal recourse to this. However, the ruling may also have unintended consequences for LLPs, with equity partners now potentially entitled to receive holiday pay, among other things.”