Court of Appeal: no protection for whistle-blowing partners
A law firm partner cannot be protected by whistle-blowing legislation because she is not a “worker”.
In Clyde & Co LLP & Anor v Bates Van Winkelhof [2012] EWCA Civ 1207, the Court of Appeal held that Krista Bates Van Winkelhof, an equity partner at Clyde & Co, could not be a “worker” within the definition of s 230 of the Employment Rights Act 1996.
Bates Van Winkelhof was working in Tanzania for a local firm, Ako Law, which had a joint venture agreement with Clyde & Co. She brought allegations that the managing partner of Ako Law was involved in money-laundering and had paid bribes to secure work and to affect the outcome of cases. She was dismissed by Ako and later expelled from Clyde & Co.
She brought a whistle-blowing complaint and a sex-discrimination claim against Clyde & Co, claiming she had made protected disclosures under the 1996 Act, and had recently told the firm she was pregnant.
Dismissing Bates Van Winkelhof’s appeal, Lord Justice Elias said there were two “inter-related” reasons why partners could not be employees—legal and sociological.
“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 said.
“He would be both workman and employer, which is a legal impossibility.”
Second, “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...Where the relationship is one of partners in a joint venture, that characteristic is absent.”
However, the court ruled that Bates Van Winkelhof can continue with her sex-discrimination claim.
Clyde & Co has strenuously denied the claims.
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