LLPs and Whistleblowing – EAT Gives Guidance

July 24, 2016

LLPs and Whistleblowing – EAT Gives Guidance

Members of limited liability partnerships (LLPs) are not 'employees', but they are 'workers' and are thus entitled to all the legal protections afforded by the whistleblowing provisions of the Employment Rights Act 1996. That point was made in the case of a senior solicitor who claimed that he had been forced out of a law firm in the midst of boardroom strife (Roberts v Wilsons Solicitors LLP and Others).

Mr Roberts was the managing partner at Wilsons Solicitors LLP. In his capacity as compliance officer, he had been called upon to investigate a complaint of bullying against the senior partner. He produced a detailed report on the matter, which was to be discussed at a members' meeting. However, the majority of members refused to attend that meeting, instead demanding that he resign as managing partner

He considered that those events made his continued membership of the partnership untenable. He accepted what he claimed was the firm's repudiatory breach of his rights under the partnership agreement and ceased work. The firm, however, argued that he had not resigned in accordance with the terms of the agreement and that he thus continued to be a member. It eventually purported to expel him from the partnership on the basis of his prolonged unauthorised absence from work.

Mr Roberts brought a claim for compensation for detriment suffered by a worker as a result of the making of protected disclosures.

The Employment Tribunal (ET) found that his claim that his membership had automatically terminated on his acceptance of a repudiatory breach could not succeed. There was no appeal against that decision, which was in line with binding authority that there is no place for such claims in the case of LLPs.

However, the ET also went on to strike out his claim in respect of post-termination financial losses. In upholding his appeal against that decision, the Employment Appeal Tribunal found that, even if his expulsion from the firm was lawful, such losses were recoverable if they could be shown to be attributable to earlier detrimental treatment arising from whistleblowing. That part of the claim should not have been dismissed without a full hearing and was sent back to the ET for reconsideration.