The government’s failure to introduce legislation to protect whistleblowing partners is a ‘missed opportunity’ to provide clarity in an area of law that remains uncertain, employment lawyers have said.
Under the Employment Rights Act 1996, partners in firms, along with non-executive directors, volunteers, interns and those working in the armed forces and national security services, are not provided with formal protection from disciplinary action if they call attention to wrongdoing.
The government last week announced plans to bring student nurses into the scope of statutory protections. The changes will be made through secondary legislation under the Enterprise and Regulatory Reform Act 2013.
But in its response to a consultation entitled Whistleblowing Framework Call for Evidence, the Department for Business, Innovation & Skills said further legislation to protect partners is ‘unnecessary’ following a landmark ruling. In Clyde & Co LLP and another v Bates van Winkelhof the Supreme Court ruled in May that members of LLPs should be treated as ‘workers’ in the context of whistleblowing cases.
However, specialist lawyers said that the position of partners could still be open to dispute.
Clare Murray, managing partner at employment firm CM Murray, said: ‘It is extraordinary that legislative action is not being taken to recognise clearly in statute the rights of LLP members to whistleblowing protections.
‘This decision by the government has also left unanswered the issue as to whether partners in general partnerships are covered by whistleblowing protections.
‘It means that it is likely to fall to another claimant to take this issue all the way back to the Supreme Court to work out if partners should be protected too. The government has dropped the ball.’
William Granger, employment lawyer at City firm Speechly Bircham, said: ‘The government’s view that we only need to rely only on the Supreme Court decision misses a great opportunity to address [the remaining] uncertainties. The business community is perhaps not best assisted by having to wait for more legal decisions to appear over time.’