Clydes set to appeal as EAT whistleblowing case goes in ex-partner’s favour

Clyde & Co plans to appeal an Employment Appeals Tribunal (EAT) decision that found the firm should face a claim from a former partner.

The firm had argued that an Employment Tribunal case brought by Krista Bates van Winkelhof, who alleges that she was ejected from the firm after blowing the whistle while working in Tanzania, had no jurisdiction in the UK because she was based in Africa while at the firm.

Bates van Winkelhof joined Clydes as an equity partner in February 2010 after it acquired her then firm Shadbolt (19 November 2009). She had overseen the Shadbolt’s relationship with Tanzanian firm AKO Law, a relationship that continued following the merger.

Bates van Winkelhof told the EAT that six months after the merger she was suspended by Clydes after she blew the whistle on Kibuta Ongwamuhana, the managing partner of AKO Law, alleging that he admitted to her that he paid bribes to secure work and favourable outcomes on cases. According to the EAT judgment the allegations have been denied by Clydes.

In his judgment, Judge Peter Clark noted that Bates van Winkelhof said that the day after she reported the alleged wrongdoing to money-laundering officers she was dismissed by AKO Law and Clydes. The following January (13 January 2011) she was asked to leave the firm.

In his ruling Judge Clark said: “It’s her case that her expulsion was a detriment on the grounds that she had made protected disclosures in respect of Kibuta and/or amounted to unlawful sex discrimination on the grounds that (a) a male partner would not have been treated in that way and/or (b) was pregnancy-related, she having recently informed the first respondent [Clydes] that she was pregnant.”

Construction practice head John Morris has also been named as a defendant, with the firm instructing Littleton Chambers’ Chris Quinn to defend the claim.

Mishcon de Reya partner Joanna Blackburn instructed Essex Court Chambers’ David Craig for the claimant. Mishcon is acting on a pro-bono basis for Bates van Winkelhof.

The case is set to be heard by the Employment Tribunal in June after the EAT ruled that as a ‘limb (b) worker’ Bates van Winkelhof was entitled to make a whistleblowing claim.

However, the firm said it plans to appeal the EAT’s decision.

A spokesperson said: “We regret the breakdown of relations with Ms Bates van Winklehof but strenuously deny the entirety of her claims.

“Ms Bates van Winklehof was removed from the partnership on 13 January 2011. She was based in Tanzania and therefore we argue has no basis for bringing claims against Clyde & Co in London.

“We consider the complex issues of jurisdiction raise new points of law which are likely to be of particular interest to the Court of Appeal, to whom we are now seeking leave to appeal.“

According to Judge Clark’s judgment, four points needed to be satisfied for  the claimant to be deemed a ‘limb (b) worker’.

Quinn, for Clydes, had argued that the claimant had not fulfilled one of the criteria necessary for a ‘limb (b) worker’, namely that the claimant “was not providing work or services under the contract (that is, the LLP equity membership agreement between her and the first respondent) to the first respondent but instead did so for the joint venture between the first respondent and AKO Law”.

Judge Clark rejected the argument, stating: “Under the LLP agreement between the claimant and the first respondent […] the claimant agreed to devote her full-time attention to the business of the first respondent.”

The firm also attempted to overturn an extraterritorial jurisdiction point, contending that as the claimant was based in Tanzania there was no jurisdiction to bring the claims in London. The judge rejected the argument.

The case has now been referred back to the Employment Tribunal for a full hearing scheduled to go ahead on 18 June.