The cornerstone of protection for UK employees against discrimination based on whistleblowing is Section 2 of the UK Public Interest Disclosure Act 1998. This provides:
A worker has the right not to be subjected to any detriment by any act or any deliberate failure to act by his employer done on the ground that the worker has made a protected disclosure.
Are Partners “Workers”?
The question which was recently addressed by the Supreme Court was whether and to what extent this legislation protects lawyers, accountants, hedge fund managers and a host of other professionals whose status is that of partner or member of a limited liability partnership rather than as a more obvious class of employee.
In Bates van Winkelhof v Clyde & Co, the Supreme Court unanimously concluded that an equity member of a limited liability partnership was indeed a “worker” and thus entitled to bring a claim in the employment tribunal under the statutory provisions protecting whistle-blowers from being subjected to any alleged detriment for having made a protected disclosure.
Whistle-blowing and Pension Ramifications
The Supreme Court’s decision is likely to breathe fresh life into whistle-blowing type claims, not least because (alongside race, sex and age discrimination) such claims are uncapped in employment tribunals and can be brought in a large number of circumstances. That fact will not be lost on disgruntled LLP members (and their legal advisers) as they exit or are removed from partnerships.
The case also creates other potential headaches and uncertainties for businesses structured in this way. This is because protection as “workers” under UK and EU legislation is not limited to whistle-blowing but also extends into other areas such as pension and employment rights.
Be that as is may, the Supreme Court evidently concluded that the public interest in ensuring a culture of compliance and transparency in which individual members are able to bring wrongdoing to their firm’s attention is of paramount importance.