Appeal court dismisses Clydes whistleblowing claim, allows discrimination case

Bates van Winkelhof alleged that she was ejected from the firm after blowing the whistle on alleged bribery and corruption by Kibuta Ongwamuhana, the managing partner of Clyde & Co’s Tanzanian associate firm Ako Law. Matrix Chambers’ Tom Linden QC was instructed by Mishcon de Reya partner Joanna Blackburn to lead the case.

The firm had disputed the claim on the grounds that the London court had no jurisdiction to hear it because members of LLPs are not workers as defined by section 230(3) of the Employment Rights Act. The first instance Employment Tribunal agreed, but the Employment Appeal Tribunal overturned the decision.

The firm instructed Littleton Chambers’ Andrew Stafford QC and Chris Quinn to lead its appeal.

In a judgment handed down today Lord Justices Lloyd, Richards and Elias ruled that as Bates van Winkelhof was not a member of Clydes’ LLP within the Employment Rights Act she had no jurisdiction to bring a whistleblowing claim.

Giving the substantive ruling, Elias LJ stated: “In my judgment, therefore, a member of an LLP who, if it 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 within the meaning of Section 230 of the Employment Rights Act 1996. It follows that the claimant cannot pursue her whistleblowing claim.”

The firm, however, failed in its attempts to have the pregnancy, sex discrimination claims thrown out on grounds of jurisdiction. The CoA accepted rulings made in both the Tribunal and the EAT that Bates van Winkelhof had spent sufficient time in the UK to have claim to jurisdiction.

Bates van Winkelhof launched her claim against Clydes after she was suspended by the firm in January 2011, a day after she raised the allegations against Kibuta Ongwamuhana.

She joined Clydes as an equity partner in February 2010 after it acquired her then firm Shadbolt (19 November 2009). She had overseen Shadbolt’s relationship with Ako Law, a relationship that continued following the takeover. The two firms had separate profit pools but were understood to be working towards a profit-sharing arrangement.

She was sacked by Ako Law in November 2010, returning to London the following month to discuss allegations made against her with bosses at Clydes. Prior to being sacked by Ako Law Bates van Winkelhof had two employment contracts, one with Ako Law and one with Clydes.

The firm strongly disputes her claims. In a statement it said: “Clyde & Co welcomes the Court of Appeal’s decision upholding employment Judge Welch’s original finding in respect of Ms Bates van Winkelhof’s legal status during her former role in Tanzania. We maintain that Ms Bates van Winkelhof’s claims of detriment were without merit and we entirely refute her remaining claims of discrimination.

“The firm strenuously denies that she was removed from the partnership as a result of her pregnancy or gender and indeed her other claims of detriment. It was only after the process which led to her departure had begun that Ms Bates van Winkelhof began to make her allegations of discrimination. We continue to believe this issue could, and should, have been resolved through arbitration or mediation, as provided for in our partnership agreement.”