An LLP member can claim compensation for earlier detrimental treatment


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The Court of Appeal has held that a solicitor could claim compensation for earlier detrimental treatment due to protected disclosures, even where he had been subsequently lawfully expelled from an LLP in Roberts v Wilson Solicitors LLP & ors. 

Following the Supreme Court's decision in Bates van Winkelhof v Clyde & Co LLP it has been established that an LLP member can be a worker for the purposes of gaining whistleblowing protection.

Mr Roberts was a Managing Partner at Wilsons Solicitors LLP. He had been called upon to investigate a complaint of bullying against the senior partner in his role as compliance officer. He produced a detailed report, but the other members of the LLP refused to meet to discuss the findings. Instead, they demanded that he resign from the position of Managing Partner and removed him from his position as compliance officer.

Mr Roberts claimed that the LLP and members had acted in repudiatory breach of the terms of the Member Agreement and his Deed of Adherence and he wrote to the LLP accepting the alleged repudiatory breaches and ceased work. The firm argued that he had not resigned in accordance with the terms of the agreement (which stipulated that there was a notice period of 6 months) and that he therefore continued to be a member. When Mr Roberts did not return to work the LLP expelled him from the partnership on the basis of his prolonged absence from work.

Mr Roberts brought a claim for detriment suffered as a result of the protected disclosures that he had made. He claimed that he had suffered stress-related illness as a consequence. At first instance the Employment Tribunal struck out his claim, but the Employment Appeal Tribunal (EAT) held that such a claim was admissible, provided that he could demonstrate that his losses were attributable to the earlier unlawful treatment. The Court of Appeal has agreed with the Employment Appeal Tribunal.

Take note: The Supreme Court established in Bates van Winkelhof v Clyde & Co LLP that an LLP worker can be a worker for the purposes of gaining whistleblowing protection. However, following the decision in Roberts LLPs need to be aware that an LLP member who is a worker and is protected by the whistleblowing provisions in the Employment Rights Act 1996 can claim compensation for post-termination financial losses even if they have been lawfully expelled from the LLP. This will be subject to the proviso that the individual can demonstrate that such losses are attributable to the earlier unlawful treatment.

This article is taken from HR Law February 2018.

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