Wednesday 26 September 2012

LLP Members are not Workers

[Thanks to Dean Fuller of Fox for writing this case summary]

Can an LLP member be a worker?

No, says the Court of Appeal in Clyde & Co LLP v Van Winkelhof.

Ms Bates Van Winklehof brought a whistleblowing complaint against Clyde & Co LLP alleging she had suffered a number of detriments, in particular being expelled as a member. The employment tribunal said it was not satisfied that she was a 'worker' and therefore she could not pursue her whistleblowing claim. She successfully appealed to the EAT. However, the Court of Appeal has today handed down judgment in the case, reversing the earlier decision of the EAT which had held that an LLP member could be a 'worker' within the extended definition in section 230(3)(b) of the ERA.

The Court of Appeal agreed with the appellant that Ms Bates was not in a subordinate position and therefore a worker within the meaning of the relevant definition and that she could not be a worker because of section 4(4) of the Limited Liability Partnerships Act 2000. At para 67 Elias LJ concludes "a member of an LLP who, if it had not been registered as an LLP would have been a partner in an 1890 Act partnership, can be neither an employee nor a limb (b) worker...It follows that the Claimant cannot pursue her whistleblowing claim."

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