Partners who expose malpractice in their own law firm will now be protected by whistleblower legislation, the Supreme Court ruled on 21 May, in a precedent-setting judgment that follows a claim brought by former Clyde & Co partner Krista Bates van Winkelhof.
The Supreme Court held – overturning a Court of Appeal finding in 2012 – that members of limited liability partnerships are ‘workers’ for the purpose of employment legislation and therefore have the same protections as employees if they have ‘blown the whistle’ at work.
The hearing follows allegations by Bates van Winkelhof – strongly denied by Clyde & Co – that she was forced to leave the firm after blowing the whistle on the managing partner of the firm’s Tanzanian associate firm, alleging he was paying bribes to win clients. She had also announced her pregnancy. These allegations did not form part of the Supreme Court’s deliberations.
Bates van Winkelhof brought the complaint against Clydes under the Employment Rights Act 1996, on the basis her expulsion from the partnership was detrimental because she had made protected disclosures.
Mishcon de Reya represented Bates van Winkelhof, led by head of employment Joanna Blackburn, who instructed Matrix Chambers’ Thomas Linden QC and Essex Court’s David Craig. All were acting pro bono.
Bates van Winkelhof will now be able to pursue her claim in the Employment Tribunal in September 2014.
This far-reaching ruling now extends protection to many thousands of firm members often working in the heavily regulated fields of law, accountancy and financial services.
In a statement, Clyde & Co said: ‘We were surprised the Supreme Court overruled the Court of Appeal’s decision. The Court was not concerned with the merits of Ms Bates van Winkelhof’s underlying claims. Their decision was confined to the narrow point of whether a partner can be considered a “worker” under the Act.
‘We strongly deny Ms Bates van Winkelhof’s still untested allegations. We contend the process of her removal from the partnership was set in place before her pregnancy was known, and before her disclosures.’
Nicola Rabson, an employment partner at Linklaters said of the verdict: ‘This is a sensible decision that is consistent with the trend to ensure those who raise concerns are protected against retaliation.’
However, Weightmans employment partner Phil Allen said: ‘Members being workers raises the possibility of wider rights. As they are to be defined as “workers” LLP members may be entitled to receive paid annual leave or to be auto-enrolled in a pension scheme – a potential administrative nightmare.’