You're Not The Boss Of Me

14 Jul

The limitations on whistleblowing protection imposed by the Court of Appeal in Clyde & Co LLP and another v Bates van Winkelhof were overturned by the Supreme Court (SC) on 21st May 2014 (Bates van Winkelhof v Clyde & Co LLP and another [2014] UKSC 32).

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The limitations on whistleblowing protection imposed by the Court of Appeal in Clyde & Co LLP and another v Bates van Winkelhof were overturned by the Supreme Court (SC) on 21st May 2014 (Bates van Winkelhof v Clyde & Co LLP and another [2014] UKSC 32).

The one key part of the Court of Appeal judgment related to the argument that a partner all be it one who was a member of an LLP could not be a worker because that would in effect be making the partner his or her own boss. The SC took a different view and held that the partner was a worker.

This decision is important for establishing that LLP partners can now be workers. What I thought was equally important was the fact that the highest court in the land has now put the seal of approval on some of the previous decisions and the approach adopted as to who should and who should not be considered to be a worker.

Many lawyers & judges have tried to embellish S230 Employment Rights Act 1996 (the Act) when making the case for an individual being or not being a worker. They have done so for expedience and sometimes because it made their task easier. This has led to sub tests such as ‘subordination’ (is the individual subordinate to the person who has engaged them) being conjured up.

This is a temptation that should be resisted as this slippery slope leads to bolt on requirements which are some way away from the original legislative test.

What we found out from the SC is that the starting point (and the end point) should always be the definition found in S 230 of the Act and there is no need to try to graft further layers/conditions on to the Act. There is no 'magic key' with which a Tribunal or Court can unlock the words of the statute to help them establish whether someone has the status of a worker.

The SC made it clear that there would always be borderline cases where it is not easy to see the answer but warned against looking to a mystery ingredient such as 'subordination' to try and answer the question.

In short keep it simple. Things are complicated enough in employment law without some lawyers/judges making things easier for themselves but harder on the rest of us.

Peter D 

 

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