Clyde & Co LLP & Anor v van Winklehof (Rev 1)

Summary

Easter Term
[2014] UKSC 32
On appeal from: [2012] EWCA Civ 1207

JUDGMENT

Clyde & Co LLP and another (Respondents) v Bates van Winkelhof (Appellant)

before

Lord Neuberger, President
Lady Hale, Deputy President
Lord Clarke
Lord Wilson
Lord Carnwath

JUDGMENT GIVEN ON

21 May 2014

Heard on 24 and 25 March 2014

Appellant Thomas Linden QC David Craig Claudia Renton (Instructed by Mishcon de Reya)		Respondent Andrew Stafford QC Chris Quinn Nicholas Goodfellow (Instructed by Clyde & Co LLP)

Intervener (Public Concern at Work) John Machell QC Jonathan Cohen Adil Mohamedbhai (Instructed by CM Murray LLP)

LADY HALE (with whom Lord Neuberger and Lord Wilson agree)

Can a member of a Limited Liability Partnership (LLP) be a "worker" within the meaning of section 230(3) of the Employment Rights Act 1996 ("the 1996 Act")? If she is, she may claim the benefit of the protection given to "whistle-blowers" in sections 43A to 43L of that Act, inserted by the Public Interest Disclosure Act 1998. There are also potentially other rights involved if the member is a "worker".

Section 230(3) of the 1996 Act defines two sorts of worker for the purpose of that Act. Limb (a) covers an individual who has entered into, works under or has worked under "a contract of employment". No-one has suggested that the contract between the member and the LLP in this case was a contract of employment. The question is whether the member falls within limb (b) of section 230(3), which covers an individual who has entered into or works under or worked under

"any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual".

Section 230(5) is also relevant:

"In this Act, 'employment' . . .

(b) in relation to a worker, means employment under his contract;

and 'employed' shall be construed accordingly."

Section 230(4) provides that in the Act, "employer" means the person by whom the worker is employed.

The immediate context is whether the member can claim the benefit of the protection given to "whistle-blowers" by the 1996 Act. But limb (b) workers are also able to claim two other rights under the 1996 Act, the right not to suffer an unauthorised deduction from wages (section 13) and the right not to be subjected to a detriment for exercising rights under the Working Time Regulations (SI 1998/1833) (section 45A). The same definition of worker is also used in some other legislation, most notably the National Minimum Wage Act 1998, the Working Time Regulations 1998 (SI 1998/1833), and the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551). But the rights given to this type of worker are much less extensive than those given to workers under a contract…

JUDGMENT

21 May 2014

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Orders of the court

Background to the litigation

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Legal Principle Established