“… such a member cannot bring a whistleblowing claim (and would also be deprived of part-timer and equal pay remedies) …”

In a previous post I commented on the case of Bates van Winkelhof v Clyde & Co in which the Employment Appeal Tribunal found that an LLP member was a “worker” within the meaning of Section 230 of the Employment Rights Act 1996 and was thus entitled to pursue a whistleblowing claim.

The Court of Appeal has now reversed that decision, finding that an LLP member who (if the LLP had not been registered as an LLP) would have been a partner in an 1890 Act partnership, can be neither an employee nor a limb (b) worker. Thus such a member cannot bring a whistleblowing claim (and would also be deprived of part-timer and equal pay remedies).

With regard to jurisdiction of the English Employment Tribunal to hear the claimant’s sex and pregnancy discrimination claims (given that her principal place of work had been Tanzania), the Court of Appeal found that the connections to England were sufficiently strong to enable her to bring her claims in England.

This conclusion was based on the following facts:

  • the claimant worked at least partly in Great Britain;
  • the LLP Agreement was governed by English law;
  • as a member of the LLP she agreed budgets with her partners in London;
  • she visited London, for work, on a regular basis;
  • she was mainly paid from London;
  • all her time recording was done on Clyde & Co’s time recording system;
  • all invoices generated, whilst put through the Tanzanian law firm, Ako Law, were generated from Great Britain;
  • she was provided with administrative support from London (even though she had a secretary in Tanzania);
  • she appeared on the Law Society website list of solicitors as a member of Clyde & Co;
  • Clyde & Co’s press releases detailed her as being a member of Clyde & Co.

This decision is highly fact-specific, in other words each case has to be examined on its own facts to determine whether there is a sufficient connection to the English system of law to give the English Employment Tribunal jurisdiction to hear discrimination claims brought by foreign-based partners.

 

If you are affected by any of the issues raised in this post and would like a confidential, no obligation meeting or telephone discussion to explore how I can assist you, please contact me.

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