In a previous role I was a member of an LLP, and it is certainly true to say that the answer to this question varied considerably between different people!
Seriously, this was the question which faced the Supreme Court in the recent case of Clyde and Co LLP v Bates van Winkelhof . In this case the issue was whether a junior equity partner in a limited liability partnership (LLP) was a ‘worker’ within the meaning of the Employment Rights Act 1996 (ERA) and was therefore able to pursue a whistleblowing claim.
Ms Bates was made a junior equity partner in Clyde and Co, a London-based law firm which was structured as a LLP, after Clyde and Co purchased a firm in Tanzania at which Ms Mates was on secondment. When Ms Bates reported to Clyde and Co that the managing partner in Tanzania had told her that he had paid bribes, her secondment was ended and she was expelled from the LLP. Ms Bates lodged a whistleblowing claim on the basis that she had suffered a detriment contrary to the provisions of the ERA as a result of her protected disclosure of reporting the bribes.
The Employment Tribunal had held that Ms Bates could not be a worker under the ERA as she was a member of the LLP; this decision was reversed by the Employment Appeal Tribunal, but reinstated by the Court of Appeal. The Supreme Court overturned the Court of Appeal and held that a LLP member could be a worker for these purposes, and was therefore able to bring her whistleblowing claim.
For most, this decision will be academic, but it does show how the courts are willing to interpret legislation in a purposive manner in order to provide for protection from whistleblowing.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).