LIMITED LIABILITY PARTNERSHIP MEMBERS ARE NOT WORKERS
3 October 2012
The question asked in a recent whistleblowing Employment Appeal Tribunal was, can a Limited Liability Partnership (LLP) member be a worker?
No, said the Court of Appeal in Clyde & Co LLP v Van Winkelhof .
Daniel Barnett’s Employment Law Bulletin reports:
Ms Bates Van Winklehof brought a whistleblowing complaint against Clyde & Co LLP alleging she had suffered a number of detriments, in particular being expelled as a member. The employment tribunal said it was not satisfied that she was a 'worker' and therefore she could not pursue her whistleblowing claim. She successfully appealed to the EAT. However, the Court of Appeal has today handed down judgment in the case, reversing the earlier decision of the EAT which had held that an LLP member could be a 'worker' within the extended definition in section 230(3)(b) of the Employment Rights Act (1996) . The Court of Appeal agreed with the appellant that Ms Bates was not in a subordinate position and therefore a worker within the meaning of the relevant definition and that she could not be a worker because of section 4(4) of the Limited Liability Partnerships Act 2000. At para 67 Elias LJ concludes "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...It follows that the Claimant cannot pursue her whistleblowing claim."
QUALIFYING SERVICE REQUIRMENT FOR UNFAIR DISMISSAL CLAIM
3 October 2012
Is continuity of employment preserved when an employee is absent from work at one employer due to a temporary cessation of work, and then starts different work for an associated employer?
This is a vital question in many cases because meeting the qualifying service requirement for a claim of unfair dismissal can depend on it.
Daniel Barnett’s Employment Law Bulletin reports:
In this case Holt v EB Security Ltd , fourteen days after the first employer dismissed the Claimant, he was taken on by an associated employer in a completely different job, then dismissed within a year. He argued that his continuity of employment was preserved, meaning that he could claim unfair dismissal. The employment tribunal disagreed. The EAT held that continuity was preserved under S212(3)(b) of the Employment Rights Act, following Bentley Engineering v Crown. Looking back from the vantage point of his new job, there was a temporary cessation of work, and the Claimant was absent from work due to that cessation. There is no need for the associated employer to resume the operations of the first employer; any work with an associated employer would suffice to preserve continuity.
The EAT directly addressed the criticisms of Harvey as to the rightness of Crown, in which continuity was preserved during a cessation of work for the Claimants of up to two years.
CIPP Policy News Journal
12/04/2013, Page 61 of 362
Made with FlippingBook - Online magazine maker