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Clyde & Co LLP and another v Bates van Winkelhof
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1 User Commentary

Melanie Davidson (In-house lawyer) 24 September 2015

Case Digest

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Whether a member of an LLP can be a "worker" under s 230(3)(b) of the Employment Rights Act 1996 in order to successfully claim the "whistle-blowing" protection

In the Supreme Court, Lady Hale (with whom Lord Neuberger and Lord Wilson agreed) handed down judgment in the matter of Clyde & Co LLP and another (Respondents) v Bates van Winkelhof (Appellant) [2014] UKSC 32 on appeal from the Court of Appeal of England.

The appellant reported to the LLP's money laundering reporting officers that the managing partner of the Tanzanian law firm, with whom the LLP were doing business, had admitted paying bribes to secure work and the outcome of cases. She claimed that these were protected disclosures that fall within the meaning of s 43A of the Employment Right Act 1996 Act and therefore are entitled to the whistle-blowing protection under the provisions of the 1996 Act, as she was subjected to a number of detriments as a result of her disclosures. The respondent argued that the appellant was not a "worker" within the meaning of s 230(3) of the 1996 Act and therefore cannot claim the protection of a whistle-blower.

The Employment Tribunal found that the appellant was not a worker since she was in business in her own right receiving profits in relation to the work carried out. However, the Employment Appeal Tribunal allowed her appeal and held that she was a worker as she was employed under a contract to personally perform work or services for the respondent. The respondent successfully appealed to the Court of Appeal, where it was held that the appellant was not a worker as under s 4(4) of the Limited Liability Partnership Act 2000 the phrase "employed by" is strictly restricted to contracts of employment. An LLP could not properly be described as an employer of its members unless the members were partners in a partnership. The appellant now appealed to the Supreme Court.

In a majority judgment, the Supreme Court held that the appellant was a worker within the meaning of s 230(3) of the 1996 Act as it is not necessary to interpret s 4(4) of the 2000 Act so narrowly. Under s 4(4), it did not mean that a member of an LLP can only be a worker under s 230(3) of the 1996 Act if the members of the LLP were partners in a traditional partnership. Lord Clark added that s 230(3) of the 1996 Act and s 4(4) of the 2000 Act should be read together and found that a worker within s 230(3) is a person "regarded for any purpose as employed" by the LLP within s 4(4).

Therefore the appeal was allowed as the appellant clearly is a "worker" within the meaning of s 230(3)(b) of the Employment Rights Act 1996 and was entitled to claim the protection of its whistle-blowing provisions.

Whether a member of an LLP can be a "worker" under s  230(3)(b) of the Employment Rights Act 1996 in order to  successfully claim the "whistle-blowing" protection
In the Supreme Court, Lady Hale (with whom Lord Neuberger and Lord Wilson agreed) handed down judgment in the matter of Clyde & Co LLP and another (Respondents) v Bates van Winkelhof (Appellant) [2014] UKSC 32 on appeal from the Court of Appeal of England.
The appellant reported to the LLP's money laundering reporting officers that the managing partner of the Tanzanian law firm, with whom the LLP were doing business, had admitted paying bribes to secure work and the outcome of cases. She claimed that these were protected disclosures that fall within the meaning of s 43A of the Employment Right Act 1996 Act and therefore are entitled to the whistle-blowing protection under the provisions of the 1996 Act, as she was subjected to a number of detriments as a result of her disclosures. The respondent argued that the appellant was not a "worker" within the meaning of s 230(3) of the 1996 Act and therefore cannot claim the protection of a whistle-blower.
The Employment Tribunal found that the appellant was not a worker since she was in business in her own right receiving profits in relation to the work carried out. However, the Employment Appeal Tribunal allowed her appeal and held that she was a worker as she was employed under a contract to personally perform work or services for the respondent. The respondent successfully appealed to the Court of Appeal, where it was held that the appellant was not a worker as under s 4(4) of the Limited Liability Partnership Act 2000 the phrase "employed by" is strictly restricted to contracts of employment. An LLP could not properly be described as an employer of its members unless the members were partners in a partnership. The appellant now appealed to the Supreme Court.
In a majority judgment, the Supreme Court held that the appellant was a worker within the meaning of s 230(3) of the 1996 Act as it is not necessary to interpret s 4(4) of the 2000 Act so narrowly. Under s 4(4), it did not mean that a member of an LLP can only be a worker under s 230(3) of the 1996 Act if the members of the LLP were partners in a traditional partnership. Lord Clark added that s 230(3) of the 1996 Act and s 4(4) of the 2000 Act should be read together and found that a worker within s 230(3) is a person "regarded for any purpose as employed" by the LLP within s 4(4).
Therefore the appeal was allowed as the appellant clearly is a "worker" within the meaning of s 230(3)(b) of the Employment Rights Act 1996 and was entitled to claim the protection of its whistle-blowing provisions.

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