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An attempt by Clyde & Co to have Employment Tribunal proceedings against it stayed through the High Court has been rejected.
The firm and its construction practice head John Morris are named as defendants in a discrimination claim being pursued by former partner Krista Bates van Winkelhof.
The claimant officially joined the firm last year after Clydes acquired her former firm, Shadbolt (19 November 2009). Prior to that she had overseen the firms’ relationship with Tanzanian firm AKO Law, a relationship that continued following the merger. She was a senior equity partner at Clydes and divided her time between London and Tanzania.
Clydes expelled Bates van Winkelhof from its partnership in January this year and in February she launched a claim alleging discrimination on the grounds of sex and/ or pregnancy.
The firm applied for injunctive relief from the High Court on the grounds that its internal partnership agreement, agreed to by Bate van Winkelhof, stipulated that any member in dispute with the firm should settle that dispute by alternative dispute resolution means.
Clydes argued through its counsel, Littleton Chambers’ Chris Quinn, that the High Court should grant injunctive relief to allow for the partnership deed to be enacted. In doing so the court would achieve a speedier and more cost effective settlement for the parties, he added.
However, Essex Court Chambers’ David Craig, who was instructed by Mishcon de Reya partner Joanna Blackburn for Bates van Winkelhof, countered that Section 9 of the Arbitration Act 1996 identifies and limits the circumstances in which the High Court should grant a stay of proceedings before it in support of arbitration.
There is no power under the Arbitration Act to stay proceedings before an Employment Tribunal, Craig stated.
Mrs Justice Slade agreed, rejecting Clydes’ application and stating that the partnership clause is unenforceable because it seeks to preclude or limit the continuation of the claims, which contradicts employment legislation.
“There would be no discernable rationale for rendering unenforceable such agreements reached before proceedings have commenced but enforceable once an ET1 [Employment Tribunal claim] had been lodged,” the judge stated in her ruling.
“Further it would be surprising if employees were given lesser protection in this regard when pursuing discrimination claims under the EA [Equality Act 2010] than when pursuing claims under the ERA [Employment Rights Act 1996].”
In a statement Clydes said it would apply to appeal the decision: “Clyde & Co regrets the breakdown of relations with Krista Bates van Winkelhof, a capable corporate lawyer, yet strenuously denies her claims.
“We have been seeking to agree suitable departure terms with Ms Bates van Winkelhof via an ADR process as required under our partnership deed. Hence the procedural step we took in the High Court to stay her Employment Tribunal claim.
“We will be seeking leave to appeal this week’s decision, since we continue to believe arbitration is the appropriate first-stage mechanism for resolving our dispute as provided for in our partnership deed.”