Clydes set to appeal as EAT whistleblowing case goes in ex-partner's favour
14 May 2012 | By Katy Dowell
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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.
Readers' comments (15)
Gladiatrix | 15-May-2012 6:08 pm
Clydes
Wherever she was based this was clearly not your finest moment, pay up, apologise and reprimand the idiots who got you into this mess.
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Anonymous | 15-May-2012 6:13 pm
If these allegations are true they raise very serious matters that the SRA will need to look into and those - if any - found not to have protected the source should face criminal charges and conduct charges. Post Bribery Act this is very serious and one hopes that there has been no cover up.
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Anonymous | 16-May-2012 9:42 am
Trying to dance around legalities when the facts are that Clyde fired a pregnant partner who blew the whistle on bribery and corruption? The SRA should nail them, the SFO should go after them and those who participated should be held accountable. How does this happen in this day and age? It appears Clyde's reputation as a female-UNfriendly place may well be justified. And interesting that Clyde's next African destination is Zimbabwe, of all places. Is there a pattern here? Law firms should hold a higher standard.
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Lawyer (New Delhi) | 17-May-2012 3:57 pm
What message does this send out to our profession? Perhaps that, if you are female and foreign, your career just does not matter, not compared to maintaining a relationship with a foreign (albeit allegedly corrupt) law firm. Aside from unfairness to Ms Bates van Winkelhof, this approach is incredibly short sighted. Whilst firms like Clydes/BLG have lofty ambitions when it comes to expanding abroad, who is going to do business with them abroad when they treat (foreign) lawyers like this?
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Anonymous | 17-May-2012 4:02 pm
Clydes are not going to be able to appeal their way out of this one: pointless trying.
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Anonymous | 17-May-2012 5:03 pm
Mishcon and the QC acting pro bono is a real statement of conviction in Ms Bates van Winkelhof and how she was treated. Given lawyers general reluctance to act for free, it must be a pretty appalling case. A pointless appeal (as the previous reader commented) smacks of vexatious litigation and further persecution. They should do the right thing, apologise, settle up and put in place proper procedures for dealing with whistle blowing.
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Anonymous | 18-May-2012 10:52 am
I am alarmed by the reporting of and commentary on this matter, including The Lawyer's email daily update content the other day. My understanding is that the bribery allegations are as yet unproven? Spare a thought for the potentially innocent individual whose reputation is currently being dragged through the mud.
And no, I don't work for Clydes (or AKO Law)!
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Anonymous | 18-May-2012 2:43 pm
Mmmm .. I wonder if there's more to this than meets the eye - excitable allegations (and noticeably one-sided comments) but case yet untested. I wonder what Clydes knows? Guess it will all come out in the wash in June.
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Anonymous | 18-May-2012 4:24 pm
The fact that Clydes are trying so desperately to keep theclaim out of the Courts speaks volumes (whether the bribary allegations have yet been tested or not). They seem to be showing remarkably poor judgment, and the bravado re an appeal is extraordinary given the narrow basis on which they are contending Ms BvW does not have the protection of the LLP Agreement they entered into with her. Their existing/prospective partners should take note.
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Anonymous | 26-May-2012 2:14 pm
Lawyer Delhi of May 17 - leave BLG out of this; nothing to do with thems and we wish Miss BvW her right to a fair hearing
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Anonymous | 2-Jun-2012 3:21 pm
I used to work for Clydes and there are 2 people (they're just the ones I know of) suing for unfair dismissal in the UAE. Very shady firm, very shady morals.
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Anonymous | 7-Jun-2012 4:54 pm
"leave BLG out of this; nothing to do with them" ? Mmn, you are all the same firm now!
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Anonymous | 7-Jun-2012 5:11 pm
"Anonymous | 26-May-2012 2:14 pm, Lawyer Delhi of May 17 - leave BLG out of this; nothing to do with thems and we wish Miss BvW her right to a fair hearing". Just to remind you that there is no BLG post 01/11/11! (although, in your head, it seems you still think you exist). Therapy perhaps?
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Anonymous | 7-Jun-2012 8:36 pm
What do you mean "leave BLG out of this": they do not exist, not since last year.
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Anonymous | 8-Jun-2012 1:32 pm
Would be interested to know who is acting for those suing Clydes, anyone know?
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