The country’s highest court will decide whether LLP members should be protected by whistleblowing legislation in a snowballing legal battle between Clyde & Co and former partner Krista Bates van Winkelhof.
The Supreme Court has given Bates van Winkelhof permission to appeal an earlier ruling that she could not pursue a whistleblowing claim against Clydes because she was a partner and not employed by the firm (26 September 2012).
The partner joined Clydes in February 2010 after it acquired her then firm Shadbolt (19 November 2009). She had overseen Shadbolt’s relationship with Tanzanian firm Ako Law, a relationship that continued following the merger.
Winkelhof contends that she was ejected from the firm after blowing the whistle while working in Tanzania. According to the Court of Appeal (CoA) ruling the complaints concerned Kibuta Ongwamuhana, the managing partner of Ako Law.
“The source of her complaints is that on 23 November 2010 she reported that the managing partner of Ako Law had been involved in money laundering and had paid bribes both to secure work and to affect the outcome of cases,” the CoA judgment stated.
“She was dismissed by Ako Law on 25 November and suspended by the appellant the following day. There was an investigation which culminated in her being expelled as a member on 13 January 2011.”
The CoA, however, said she could not pursue her claims because as a LLP member she was a partner and not an employee who was afforded protections under the Public Interest Disclosure Act 1998.
Matrix Chambers’ Tom Linden QC, instructed pro bono for Winkelhof by Mishcon de Reya partner Joanna Blackburn, will attempt to persuade the Supreme Court that all LLP members should be covered by the whistleblowing legislation.
Winckworth Sherwood partner Jo Keddie, who specialises in LLP partnership disputes, said: “It is a little incongruous that LLP equity members are not given protection under the whistleblowing legislation when they are protected under the Equality Act 2010 in being able to bring discrimination claims.
“As the law currently stands LLP equity members have no remedy for blowing the whistle and cannot claim unlimited damages for a whistleblowing claim.”
Clydes, which previously failed in its attempt to have the case thrown out because it said Winkelhof was out of jurisdiction (14 May 2012), will look to have the CoA ruling upheld. In the appellate court the firm was represented by Littleton Chambers’ Andrew Stafford QC and Chris Quinn. Construction practice head John Morris, who was involved in Winkelhof’s expulsion, was also named as a defendant.
An application by Clydes to appeal the jurisdiction ruling was refused by the Supreme Court.
A statement from Clydes read: “We recognise that the Supreme Court wishes to consider whether members of a LLP may be considered ‘workers’ under the ERA. Our view remains that the Court of Appeal decision was correct on this point.
“Whatever the Supreme Court’s ruling, this case will be remitted back to the Employment Tribunal to consider some or all of Ms Bates van Winkelhof’s claims, all of which Clyde & Co strongly denies.”