Whistle while you work


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The case of Clyde & Co LLP and Morris -v- Van Winkelhof considers the important question of whether or not a member of a limited liability partnership (“LLP”) can be a worker within the meaning of the Employment Rights Act 1996.

The Claimant in this case, Mrs Van Winkelhof, was a member of the law firm Clyde & Co. Upon joining Clyde & Co, the Claimant signed a Deed of Adherence stating that she would devote her full time and attention to the business and would be faithful to the partnership.

It is common ground in the claim that the Claimant was recruited into Clyde & Co as a result of her favourable connections in the African legal market. Therefore, following her recruitment into Clyde & Co, she worked predominately in Tanzania in order to maintain her relationship with Ako Law, a Tanzanian law firm, which then became an associate firm of Clyde & Co.

On 23 November 2010 the Claimant alleged that the Managing Partner of Ako Law was accepting bribes to secure work and control the outcome of cases and also that he was engaged in money laundering.

Two days after the above report was made, the Claimant was dismissed from Ako Law. The following day she was suspended from Clyde & Co and was later dismissed on 13 January 2011. She alleged her dismissal was unfair on two grounds:

1. She was being subjected to detrimental treatment as a result of making a protected disclosure regarding the activities of the Managing Partner of Ako Law. In other words she had ‘blown the whistle’ on unacceptable conduct and was dismissed as a result; and

2. She was subject to unlawful sex discrimination as a male partner would not have been treated the same way and/or that her dismissal related to the fact that she had recently told Clyde & Co that she was pregnant.

The claim is hotly contested by Clyde & Co, who allege that Mrs Van Winkelhof is not a ‘worker’ within the meaning of the Employment Rights Act 1996. She cannot therefore rely on the ‘whistle blowing’ legislation which is designed to afford protection to workers.

At the first Hearing the Employment Tribunal held that the Claimant was not a worker and was not therefore able to pursue her claim for whistle blowing. However, the Employment Appeal Tribunal reversed that decision on the basis that the Claimant held a subordinate position in the firm. The Court of Appeal disagreed and ruled that the Claimant was not a worker.

The Claimant was granted permission to appeal to the Supreme Court and the decision is currently awaited. The Claimant’s argument is that a member of an LLP should be a worker to allow them to make disclosures about unacceptable conduct without fear of reprisal. If the Supreme Court agrees the case will be remitted to the Employment Tribunal to be heard again.

We at Blacks can provide assistance on all types of employment disputes. We would encourage you to seek legal assistance as soon as possible if you feel you have been unfairly dismissed.

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Please contact Luke Patel
on 0113 227 9316
or by email at LPatel@LawBlacks.com

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