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A whistleblower can claim post-termination losses where these are attributable to pre-termination detriments

The Court of Appeal has confirmed that there is no reason in principle why whistleblowers should be barred from claiming post-termination losses where these derive… Read more

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The Court of Appeal has confirmed that there is no reason in principle why whistleblowers should be barred from claiming post-termination losses where these derive from pre-termination detriments.

Mr Roberts was managing partner and compliance officer of a law firm (established as an LLP). In these roles, he investigated allegations of bullying made against the firm’s senior partner. As a result, other members of the partnership voted to remove Mr Roberts from his posts.

Mr Roberts claimed that the membership had breached the terms of the LLP agreement and that his partnership had been “constructively terminated”. He claimed he had been subjected to a detriment as a result of being a whistleblower. (Following this, Wilsons did in fact terminate his membership of the partnership.) After Mr Roberts had filed his claim, a separate case in the High Court (Flanagan v Liontrust Investment Partners LLP & Ors [2015] EWHC 2171 (Ch)) found that LLP members cannot in fact treat themselves as having been “constructively dismissed/terminated” in the same way that an employee can. As a result, a preliminary hearing of the employment tribunal held that Mr Roberts’ claim should be struck out on the grounds it had no reasonable prospect of success.

The EAT and the Court of Appeal, by contrast, agreed with Mr Roberts that his losses were potentially recoverable under the whistleblowing legislation, and that the employment tribunal had erred in striking out his claim without weighing up all the evidence in a substantive hearing.

Comment: This decision will only be relevant to organisations set up as LLPs (a structure which is used commonly in the financial and professional services sectors) but serves as a useful reminder that, just because a partner can’t claim “constructive dismissal/termination” they may still be able to recover the same compensation if they can show that the action taken by the organisation amounts to a detriment on the grounds of whistleblowing. A similar issue is due to come before the Court of Appeal in July 2018, and it is hoped that this may provide additional guidance in this area.

Wilsons Solicitors LLP v Roberts [2018] EWCA Civ 52