Clyde & Co and another v Bates van Winkelhof [2012] EWCA Civ 1207

The Court of Appeal has held that an individual who worked mainly in Tanzania could bring claims in a UK Employment Tribunal.

The individual, Ms Bates Van Winkeholf, spent at least some of her time working in Great Britain, and so the Tribunal was entitled to look solely at her connection with Great Britain in this context in order to determine whether it was sufficiently strong that Parliament would have regarded it as appropriate for the Tribunal to hear her discrimination claim.

Ms BvW was a partner in a law firm and a member of a limited liability partnership (“LLP”) rather than an employee. The Court held that an LLP member cannot also be a “worker” under employment legislation.

LLPs are relatively unusual business structures and applying the worker test to them involves comparison with partnerships that are not LLPs. The more interesting point is that, although the Court acknowledged that Ms Bates van Winkelhof’s situation fell within the statutory definition of a “worker” (contained in section 230(3)(b) of the Employment Rights Act 1996), it said that there was a further implicit requirement that it must be possible to describe the relationship as an employment one. The relatively equal position of partners in a partnership and of members in an LLP meant that requirement was not met.

Implications

On the issue of geographical jurisdiction, the case confirms that an employee who performs some of their duties in the UK will be able to bring claims here, even if they are based or posted abroad. 

There is a clear distinction between the rights and obligations of partners and members in an LLP or partnership, compared to those of directors in an incorporated company. Directors will often also be employees or workers with certain additional employment protection that can be enforced against the company. This decision of the Court of Appeal makes clear that only in exceptional circumstances will this be the case for partners and members.