Clyde and Co LLP and Another v van Winkelhof: SC 21 May 2014

Solicitor Firm Member was a Protected Worker

The solicitor appellant had been a member of the firm, a limited liability partnership. She disclosed criminal misbehaviour by a partner in a branch in Africa. On dismissal she sought protection as a whistleblower. This was rejected, it being found that a member of such a firm was not a worker or an employee.
Held: The court was struck by how hard the company had had to work to establish that the claimant was not a worker. The simple statutory tests were satisfied: ‘she is employed under a contract personally to perform work or services for the LLP; she was an integral part of their business and the LLP was not her client or customer.’ and ‘ the appellant clearly is a ‘worker’ within the meaning of section 230(3)(b) of the Employment Rights Act 1996 and entitled to claim the protection of its whistle-blowing provisions. That conclusion is to my mind entirely consistent with the underlying policy of those provisions, which some might think is particularly applicable to businesses and professions operating within the tightly regulated fields of financial and legal services.’ The case was remitted to the employment tribunal.
Baroness Hale of Richmond observed that employment law distinguishes between three types of people: those employed under a contract of employment; those self-employed people who are in business on their own account and undertake work for their clients or customers; and an intermediate class of workers who are self-employed but who provide their services as part of a profession or business undertaking carried on by someone else. Some statutory rights, such as the right not to be unfairly dismissed, are limited to those employed under a contract of employment; but other rights, including those claimed in these proceedings, apply to all ‘workers’.

Lord Neuberger, President, Lady Hale Deputy President, Lord Clarke, Lord Wilson, Lord Carnwath
[2014] WLR(D) 222, [2014] UKSC 32, UKSC 2012/0229, [2014] ICR 730, [2014] 1 WLR 2047, [2014] 3 All ER 225, [2014] IRLR 641
WLRD, Bailii, Bailii Summary, SC Summary, SC
England and Wales
Citing:
Appeal fromClyde and Co Llp and Another v Bates van Winkelhof CA 26-Sep-2012
The claimant was a solicitor partner with the appellant limited liability partnership at their offices in Tanzania. She disclosed what she believed to be money laundering by a local partner. She was dismissed. She had just disclosed her pregnancy . .
See AlsoVan Winkelhof v Clyde and Co Llp and Another EAT 26-Apr-2012
EAT JURISDICTIONAL POINTS
Worker, employee or neither
Working outside the jurisdiction
Whether LLP equity member was a limb (b) worker under section 230(3). Allowing Claimant’s appeal, she was. . .
At EATClyde and Co Llp v Van Winkelhof EAT 26-Apr-2012
EAT JURISDICTIONAL POINTS
Worker, employee or neither
Working outside the jurisdiction
Whether LLP equity member was a limb (b) worker under section 230(3). Allowing Claimant’s appeal, she was. . .
CitedEllis v Joseph Ellis and Co CA 1905
A member of a partnership formed to work a mine worked in it as foreman. He took weekly wages from the profits. He suffered a fatal accident in the mine and his widow sought compensation under the 1897 Act from the surviving partners. To qualify he . .
CitedCowell v Quilter Goodison Co Ltd and QG Management Services Ltd 1989
It is not possible for an individual to be an employee of himself and his of co-partners. . .
CitedAllison v Alison’s Trustees 1904
A person cannot be an employee of a body of partners of which he is also a member. . .
CitedHeinisch v Germany ECHR 21-Jul-2011
The applicant alleged, in particular, that her dismissal without notice from her employment as a geriatric nurse on the ground that she had brought a criminal complaint against her employer alleging deficiencies in the institutional care provided, . .
CitedDeborah Lawrie-Blum v Land Baden-Wuerttemberg ECJ 3-Jul-1986
The Equal Treatment Directive is concerned with ‘workers’ which is a term of art in Community law: ‘That concept must be defined in accordance with objective criteria which distinguish the employment relationship by reference to the rights and . .
CitedAllonby v Accrington and Rossendale College for Education and Employment ECJ 13-Jan-2004
ECJ Principle of equal pay for men and women – Direct effect – Meaning of worker – Self-employed female lecturer undertaking work presumed to be of equal value to that which is undertaken in the same college by . .
CitedMirror Group Newspapers v Gunning CA 1985
The claimant sought to have transferred to her, her father’s agency for the wholesale distribution of Sunday newspapers. The claimant alleging sex discrimination after being refused. The company said that she was not an employee within the 1975 Act. . .
CitedByrne Brothers (Formwork) Limited v Baird EAT 18-Sep-2001
EAT The Tribunal was asked whether the claimant was a worker within the meaning of the Regulations and so entitled to their protection in receiving holiday pay.
Held: The appropriate classification of a . .
CitedCotswold Developments Construction Ltd v Williams EAT 21-Dec-2005
EAT What is meant by ‘mutuality of obligations’ where the claim relies on the Working Time Regulations; whether finding that there was no mutuality of obligations was inconsistent with holding that the Claimant . .
CitedJames v Redcats (Brands) Ltd EAT 21-Feb-2007
EAT National Minimum Wage
Who is a ‘worker’?
Was the Appellant who worked as a courier for the Appellant company, providing her own vehicle, a worker or home worker within the meaning of ss.54(3) and . .
CitedJivraj v Hashwani ComC 26-Jun-2009
The claimant said that the requirement in an arbitration clause for all the arbitrators to be members of the Ismaili community was unlawful under the 2003 Regulations.
Held: The appointment was not discriminatory. An arbitrator’s employment . .
CitedKudeshkina v Russia ECHR 24-Feb-2009
Article 10 applies to the workplace in general, and a professional person such as a judge is entitled to the freedom to criticise the judicial system. . .
CitedThe Hospital Medical Group Ltd v Westwood CA 24-Jul-2012
The Hospital Medical Group argued that Dr Westwood was in business on his own account as a doctor, in which he had three customers, the NHS for his services as a general practitioner, the Albany Clinic for whom he did transgender work, and the . .
See AlsoClyde and Co Llp and Another v Winkelhof CA 5-Jul-2011
. .

Cited by:
CitedUber Bv and Others v Aslam and Others CA 19-Dec-2018
Uber drivers are workers
The claimant Uber drivers sought the status of workers, allowing them to claim the associated statutory employment benefits. The company now appealed from a finding that they were workers.
Held: The appeal failed (Underhill LJ dissenting) The . .
CitedUber Bv and Others v Aslam and Others SC 19-Feb-2021
Smartphone App Contractors were as Workers
The court was asked whether the employment tribunal was entitled to find that drivers whose work was arranged through Uber’s smartphone application work for Uber under workers’ contracts and so qualify for the national minimum wage, paid annual . .
CitedPimlico Plumbers Ltd and Another v Smith SC 13-Jun-2018
The parties disputed whether Mr Smith had been an employee of or worker with the company so as to bring associated rights into play. The contract required the worker to provide an alternate worker to cover if necessary.
Held: The company’s . .
CitedStuart Delivery Ltd v Augustine CA 19-Oct-2021
Obligation to Perfom Work Personally was Critical
This appeal concerns the status of a courier delivering goods by moped. The question on the appeal is whether an employment tribunal was entitled to find that the claimant, Mr Augustine, was a worker within the meaning of section 230(3)(b) of the . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 31 October 2021; Ref: scu.525969