The Court of Appeal (“CA”) has recently given judgment in a case dealing with whether a member of an LLP is a worker (Clyde and Co LLP v Bates Van Winkelhof).
The Employment Appeals Tribunal had previously said that the LLP member in this case was a worker. The CA has now disagreed.
According to the CA, to decide the question you need to imagine the LLP operating not as an LLP but as a partnership. The CA had already decided in a previous case (Tiffin v Lester Aldridge LLP) that if a particular individual would be considered in law to be a partner in the hypothetical partnership, then he or she could not be an employee in the LLP. The CA has now decided that an individual in that situation will not be a worker either.
On the facts of this case, the CA had no doubt that the claimant would have been a partner in the hypothetical partnership. She was not therefore a worker in the LLP and, as a result, was not entitled to bring a whistleblowing claim. However, she could still bring a claim for sex discrimination as the Equality Act 2010 specifically allows LLP members to do so.
It has been suggested that both parties will try to appeal various aspects of this decision to the Supreme Court. If permission is granted the decision may well be reversed, although any final decision from the Supreme Court could be over a year away.
In the meantime, LLP members are likely to try to rely on other rights, such as those in the Equality Act and in the members’ agreement itself. Alternatively, they might seek to argue that the decision does not apply to them given their role in a particular LLP. The latter is likely to be the subject of further court cases in the months or years to come.