The Employment Appeal Tribunal has allowed a former managing partner at a limited liability partnership (LLP) to pursue a claim against the firm in an alleged whistleblowing case.
In Roberts v Wilsons Solicitors LLP & Ors (Victimisation Discrimination: Whistleblowing), EAT president Mrs Justice Simler DBE (pictured) said Andrew Roberts, who was a member of Wilsons Solicitors LLP of St Johns Street, Salisbury, could pursue a claim for post-termination losses.
In November 2015, the employment tribunal concluded that Roberts' claim in relation to when his LLP membership terminated faced an ‘insurmountable hurdle’. Neither party challenged this decision, though Roberts reserves the right to do so on any further appeal.
The tribunal also ruled that ‘the losses that flow from that termination should be struck out’.
Overturning that ruling, the EAT judgment states that ‘no reasons or explanation were provided for that decision and strictly speaking, it may have been an enlargement of the scope of the application to strike out for which permission was neither sought nor granted’.
Simler accepted Roberts’ submission that the lower tribunal had been wrong to strike out the compensation claim for termination ‘in advance of consideration of the evidence and the facts’.
She added that the 'mere fact that the claimant has not challenged the expulsion as a detriment in itself does not entail that his argument that losses following his expulsion are attributable to the earlier unlawful treatment is doomed to fail'.
The EAT’s judgment states that Roberts had brought tribunal proceedings claiming compensation for ‘detriments suffered by him as a worker as a result of the making of protected disclosures pursuant to section 47B [of the] Employment Rights Act 1996’.
Roberts claimed his LLP membership ceased with effect from 5 February 2015.
However, the LLP ‘did not accept’ that there had been any repudiatory breach of the agreement, saying Roberts remained a member 'albeit in breach of the agreement because he had failed to provide any service’. Roberts was given notice, expelling him from the LLP, on 30 April 2015 with immediate effect.
Simler said Roberts 'may pursue his claim for post-termination losses said to be attributable to the alleged unlawful conduct of the respondents prior to his expulsion’.
’If he establishes liability, it will be a question of fact and judgment for the tribunal to determine whether his claim for compensation on this basis satisfies the requirements of section 49(2) [of the 1996 act], and if so, what compensation is just and equitable in this case’.
Wilsons Solicitors told the Gazette: 'As the case is ongoing, we are not in a position to comment other than to say that Mr Roberts' claim is without merit and we are defending it vigorously.'