Partners cannot be treated as employees as it would mean firms would effectively be 'contracting with theirselves', the Supreme Court heard yesterday in a landmark employment appeal case.
Andrew Stafford QC was speaking in Clyde & Co LLP and another v Bates van Winkelhof, the long-running dispute between international firm Clyde & Co and former partner Krista Bates van Winkelhof.
The case hinges on whether partners are entitled to protection under 'whistleblowing' laws. Under the Employment Rights Act 1996 (ERA), partners in firms are not entitled to protection from unfair dismissal.
Bates van Winkelhof alleges she was sacked by Clyde & Co in 2011 after making allegations against the managing partner of the firm's Tanzanian operation.
Central to the appeal is the issue of whether LLP members should be classed as 'workers' for the purposes of whistleblower protection.
Stafford, representing Clyde & Co, told the court yesterday that under section 44 of the ERA, partners could not be treated as employees 'because [it would mean] the partnership is contracting with theirselves'.
Thomas Linden QC, representing Bates van Winkelhof, said that for all practical purposes members of LLPs could be treated as workers. He said there is a public interest argument for partners to 'raise issues of wrongdoing without the fear of victimisation.'
He also cited protection for whistleblowers under Article 10 of the European Convention on Human Rights, which covers freedom of expression.
If the Supreme Court rules in Bates van Winkelhof's favour, her allegations of unfair dismissal due to whistleblowing will be heard in the Employment Tribunal in September, along with allegations of sex discrimination.
Clyde & Co said it strongly denies all claims made by Bates van Winkelhof.
The hearing continues today.