Bates van Winkelhof v Clyde & Co LLP: Court of Appeal clarifies an LLP member's worker status

We recently reported on this case when it was heard by the Employment Appeal Tribunal (EAT), which decided that Ms van Winkelhof was a worker for the purpose of whistleblowing legislation. The case has now gone to the Court of Appeal which has overturned that decision.

An overview of the case

The EAT previously found that Ms van Winkelhof was a worker because she’d agreed to devote the whole of her working time to Clyde & Co's business, and because she was in a subordinate position to the limited liability partnership (LLP). Apart from the whistleblowing claim which is central to this case, worker status gives an individual certain rights in relation to other employment legislation including paid holiday and pension auto-enrolment. Because of this, the EAT decision was of concern to all LLPs.

The Court of Appeal overturned the EAT's decision. It held that where someone is a partner of a traditional partnership, or member of an LLP, they cannot be a worker.

Understanding the implications of this decision

If your business is an LLP, the Court of Appeal overturning the EAT decision means you now have far greater clarity on the employment rights of your members. But the terms of your members' agreement will be vital in establishing that individuals are genuinely members so you’ll need to draft these very carefully. It should also be noted that the Court of Appeal held that Ms van Winkehof could continue with her sex discrimination claim against the LLP, so there are still many significant rights that members still enjoy.

If you’d like to talk to us about the impact of the case on your organisation, please contact Nick Willis on 020 7212 1659.