Recent Appeal Court Judgement exposes further protection inadequacies for Whistle Blowers
M Bates Van Winklehof vs Clyde & Co LLP
THE COURT of appeal has slammed the door shut on protection for partners or members of limited liability partnerships if they decide to whistle-blow regarding criminal activities or serious health and safety risks within their firm.
M Bates Van Winklehof brought a whistle-blowing complaint against Clyde & Co LLP alleging she had suffered a number of detriments, in particular being ejected as a member, following her disclosure of allegations concerning alleged bribery and corruption by Kibuta Ongwamuhana, the managing partner of Clyde & Co’s Tanzanian associate firm Ako Law.
The employment tribunal ruled that she was not a 'worker' and therefore could not pursue her whistle-blowing claim but this judgment was later overturned by the EAT, only for the Court of Appeal to recently reverse the decision.
The firm had disputed the claim on the grounds that the court had no jurisdiction to hear it because members of LLPs are not workers as defined by section 230(3) of the Employment Rights Act.
Giving the substantive ruling, Elias LJ stated: “In my judgment, therefore, 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 within the meaning of Section 230 of the Employment Rights Act 1996. It follows that the claimant cannot pursue her whistle-blowing claim.”
The firm, however, failed in its attempts to have the pregnancy and sex discrimination claims thrown out on grounds of jurisdiction. The CoA accepted rulings made in both the Tribunal and the EAT that Bates van Winkelhof had spent sufficient time in the UK to have claim to jurisdiction.
Bates van Winkelhof launched her claim against Clydes after she was suspended by the firm in January 2011, a day after she raised the allegations against Kibuta Ongwamuhana.
The legislation that currently protects whistle-blowers is the landmark Public Disclosure Act 1998 which came after decades of campaigning and is most often the only avenue by which the public can discover any criminal activities or health and safety risks in corporations or institutions. The legislation has no doubt already saved lives, especially in the health and social care sectors.
This decision by the Court of Appeal has essentially cut the lifeline of protection for partners within firms to “blow the whistle” without suffering any detriment as a result of their disclosure. This, coupled with the Government’s proposals on the whistle-blowing law contained in the Enterprise and Regulatory Reform Bill, which is going through the House of Commons, will have the effect of returning to a culture in which employees are fearful of exposing serious problems and wrong doings in organisations.
There is concern that the Government proposals will not only water down the protections afforded to whistle-blowers but also make it difficult for those who should be able to rely on the legislation’s protection.
The legislation certainly needs reviewing as cases have shown lacunas in the protection such as individuals suffering detriment after being wrongly named as the whistle-blower; employees suffering reprisals from their work colleagues as a result of the disclosure; blacklisting; and so on. The Government’s proposals will not address any of these problems and will in addition make it even more difficult to exercise the current rights.
For further information or advice on Whistle Blowing Legislation and Protection please contact Christina Reed on 01772 555 176 or email christinareed@vslaw.co.uk