An equity member of a limited liability partnership was a “worker” within the meaning of section 230(3)(b) of the Employment Rights Act 1996 and therefore the employment tribunal had jurisdiction to hear a claim brought by the equity member against the partnership under section 47B of the Act, as inserted.

The Supreme Court so held, allowing an appeal by the claimant, Krista Bates van Winkelhof, from an decision on 26 September 2012 of the Court of Appeal (Lloyd, Richards and Elias LJJ) [2013] ICR 883 to allow an appeal by the respondents, Clyde & Co LLP (a firm of solicitors) and John Morris (a senior partner of the firm), from a decision of the Employment Appeal Tribunal (Judge Peter Clark) which on 26 April 2012 had allowing the claimant’s appeal from a decision dated 1 July 2011 of Employment Judge Welch at Central London Employment Tribunal that the tribunal had no jurisdiction to entertain the claimant’s claim that she had been subjected by the respondents to expulsion and other detriments on the ground of having made protected disclosures, contrary to section 47B of the 1996 Act, because the claimant was not a “worker” as defined by section 230(3) of the Act. Public Concern at Work intervened on the appeal.

The claimant was a solicitor who had become an equity member of the respondent firm in February 2010. She had an existing employment contract with a law firm in Tanzania and it had been agreed that that contract would continue as part of a joint venture between the two firms. The claimant had worked principally in Tanzania but had also spent several weeks in the respondent firm’s London office. In November 2010 the claimant had reported to the respondent firm’s money laundering reporting officers that the Tanzanian law firm had admitted paying bribes to secure work and to secure the outcome of cases. In January 2011 she had been expelled from the respondent firm.

BARONESS HALE OF RICHMOND DPSC (with whom LORD NEUBERGER OF ABBOTSBURY PSC and LORD WILSON JSC agreed) said that section 4(4) of the Limited Liability Partnerships Act 2000 was to be construed as meaning that whatever the position would be if the limited liability partnership members were partners in a traditional partnership, then that position was the same in a limited liability partnership. Section 4(4) did not operate so as to exclude the claimant from being a worker within the meaning of section 230(3)(b) of the Employment rights Act 1996. It was not a freestanding and universal characteristic of the statutory definition of a worker that one party should be in a subordinate relationship to the other, although subordination might sometimes be an aid to distinguishing workers from other self-employed people. The claimant could not market her services as a solicitor to anyone other than the limited liability partnership and was an integral part of the partnership’s business. It was were in no sense her client or customer. She was clearly a “worker” within the meaning of section 230(3)(b) of the 1996 Act and entitled to claim the protection of its whistle-blowing provisions. The case would be remitted to the employment tribunal to determine her claim.

LORD CLARKE OF STONE-CUM-EBONY and LORD CARNWATH JJSC delivered concurring judgments.