Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

This case concerns the employment status of an equity partner, specifically relating to whether she could be considered a “worker” for the her whistleblowing claim under the Employment Rights Act 1996.

The facts in Clyde & Co Llp v Winkelhof

Mrs Winklehof commenced employment with Shadbolts (a law firm) as a solicitor in 2005 and was seconded to Tazmania, where she worked (among others) for a Tanzanian law firm, Ako Law. The managing partner of Ako law was at all times Mr Ongwamuhana (“Kibuta”). She transferred her employment to Clyde & Co (“the First Respondent”), another well-known law firm, on 21 February 2010, whereupon she became an equity member of the firm.

Mrs Winklehof became aware in November 2010 of potentially illegal activities engaged in by Kibuta and reported this to the Respondent’s Money Laundering Officers on 23 and 24 November 2010. She was dismissed by Ako Law on 25 November 2010 and suspended by the First Respondent on the same day. She was ‘dismissed’ by the Respondent on 6 January 2011 and subsequently brought claims at the Employment Tribunal for, among other things, sex discrimination and detriment because of her protected disclosure.

The law relating to the employment status of equity members (and partners generally)

Under s.230(3) of the Employment Rights Act 1996 a worker is an individual who works (or used to work) under either a contract of employment or any other contract (express or implied, oral or written) where 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.

It has been established that partners can be “limb (a)” workers (or ‘employees’) for the purposes of protection against unfair dismissal (for example, the cases of Kovats v TFO Management LLP and Tiffin v Lester Aldridge LLP) but the situation presented here was, on the facts, a novel one – the question of whether a partner or equity member could be a “limb (b) worker” for the purposes of the Employment Rights Act 1996 had not been addressed before.

The Employment Appeal Tribunal’s judgment in Clyde & Co Llp v Winkelhof

An Employment Judge had initially struck out Mrs Winkelhof’s claim at a Pre-Hearing Review on the basis that she was not a “limb (b)” “worker” and therefore could not claim for detriment due to the protected disclosure she had made. The Employment Judge accepted that she was operating under a contract of employment, that she was personally providing services related to that contract, and that the services provided were to another party to the contract. However, the Employment Judge considered that Clyde & Co LLP was a client of the Claimant’s and she was therefore excluded from claiming.

The Employment Appeal Tribunal rejected this analysis. It considered that the First Respondent was not a client or customer of the Claimant as she was in a “subordinate position” (see Byrne Brothers v Baird. The Employment Appeal Tribunal therefore concluded that an equity member or partner can, dependent on the facts of the matter, be a “limb (b)” “worker” for the purpose of the Employment Rights Act 1996 and therefore qualify for protection from detriment because of a protected disclosure (or “whistleblowing”).

Our specialist employment solicitors’ view on Clyde & Co Llp v Winkelhof

This is an interesting and, as the Employment Appeal Tribunal noted, novel case. The conclusion of the Employment Appeal Tribunal appears to be a just and correct one in the circumstances – the First Respondent on the facts did not appear to have been a client of the Claimant’s. This conclusion was supported by the fact that the Claimant had been specifically recruited by the First Respondent and that she was in a subordinate position (i.e. unable to exercise unfettered discretion) in her workplace.

About Chris Hadrill

Chris is a specialist employment lawyer at Redmans. He specialises in contentious and non-contentious employment matters, including breach of contract claims, compromise agreements and Employment Tribunal cases. He writes on employment law matters on a variety of websites, including Direct 2 Lawyers, Lawontheweb.co.uk, LegalVoice, the Justice Gap and his own blog. Contact Chris by emailing him at chadrill@redmans.co.uk

Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

Share →

Our awards

Request a callback

    Your first name (required)

    Your last name (required)

    Your email (required)

    Your telephone number (required)

    Brief details of your enquiry

    Testimonials

    4.80 Average

    346 Reviews

    Anonymous

    I dealt with Chris Hadrill who was very knowledgeable and professional. To provide some context, I raised a grievance with my Employer and with the help of Redmans received a settlement offer. I have secured alternative employment and would recommend Redmans overall. I was very satisfied with the service I received and would rate it as 5 star.

    Posted 7 hours ago

    Danielle T

    I contacted Redmans in regards to a situation I needed dealing with with my employer. This was resolved within a week of initial contact and I couldn’t be happier. Both Chris and Sacha were brilliant and couldn’t have been more helpful! Thanks guys!

    Posted 1 day ago

    Anonymous

    Quick proccessing of my Redundancy agreement.

    Posted 4 days ago

    Anonymous

    Fantastic support during a difficult time! Chris was fantastic, from the first conversation all the way through a difficult process. Chris supported me with a settlement agreement and his counsel was invaluable. The company I worked for tried to suggest some solicitors that they knew would simply rush through an agreement. Thankfully I found Chris and the Redmans team, what a relief! They fought for me and allowed me to keep my focus on the next stage in my career journey. If I go through anything similar in the future Redmans will be my first point of call!

    Posted 5 days ago

    Anonymous

    Quick responses to all inquiries. Supportive and provided top-notch service. Extremely pleased with the outcome and would recommend to anyone in need of legal advise.

    Posted 6 days ago

    Ben H

    Good, quick and informative service.

    Posted 1 week ago

    Edward W

    I liked Mel Chin's approach to my inctruction. She provided clear advice and explained things in a manner that I understand. I rated her service 5 out of 5.

    Posted 1 week ago

    James B

    Great and prompt service- would recommend and use again!

    Posted 1 week ago

    Emma L

    Excellent service. From start the team where efficient and helpful, the whole process was made easy on a very stressful and upsetting situation. They worked well to support my situation and negotiate. Would highly recommend. Thank you to Chris, Sacha and the team.

    Posted 1 week ago

    Brian H

    I must say, not seeing any of you and doing all on-line works very well. Very pleased with the service and would recommend you. Fantastic service. Many thanks Brian Haines

    Posted 1 week ago

    Sheenu A

    Professionals with excellent quality of work.

    Posted 2 weeks ago

    Maris T

    I recommend Redman's Solicitors. Chris was very helpful and informative. He provided a speedy and efficient service at a reasonable price.

    Posted 3 weeks ago

    Anonymous

    quick response, friendly staff, my issue was smoothly done. superb

    Posted 4 weeks ago

    Anonymous

    Overall I was very satisfied with the service I received. Right from making initial contact to being contacted by Chris Hadrill. He was easy to talk to, friendly and professional and gave sound advice. I would certainly use Redman's again. Thank you for all your help, Chris. I would rate my experience as 5 star.

    Posted 1 month ago

    Jane K

    4 stars for quality of advise. the team are good but it feels rushed sometimes and hard to contact.

    Posted 1 month ago

    Arabella B

    I am so grateful to Caroline Lewis at Redmans Solicitor’s for helping me with my Unfair Dismissal Case. I was seriously impressed how easy Redmans made the whole case, and am very happy with my Settlement. I have recommended your firm to at least 5 people in the last 3 months.. Thank you Caroline and everyone at Redmans. You are Brilliant .

    Posted 1 month ago

    Anonymous

    Highly professional and efficient service.

    Posted 1 month ago

    Tanya T

    I had the pleasure of Chris and Sacha’s experience with a work matter. They made me feel at ease with the process and explained everything thoroughly. Would happily recommend Redmans especially Chris and use them if needed I’m the future. Thank you!

    Posted 1 month ago

    Anonymous

    I used the services of Redmans solicitors and was a quick outstanding service I engaged them in a settlement agreement after been made redundant extremely professional at all that was done and would definetly use them again

    Posted 1 month ago

    Adrian A

    Spot on support, enough to get the matter at hand sorted. No beating around the bush, no nonsense - got the job done and we all moved on.

    Posted 1 month ago

    Mark Q

    Five Stars I was most impressed by the attention, courtesy, speed and above all, professionalism in dealing with my Settlement Agreement. I would certainly have no problem in recommending this firm to anyone in need of their services.

    Posted 1 month ago