Court of Appeal allows ‘whistleblowing’ managing partner to sue former firm for £3.4m

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29 January 2018


Court of Appeal: Claim should not have been struck out

The ex-managing partner of a well-known law firm has won the right to sue his former firm for £3.4m under whistleblowing law.

Andrew Roberts claims that he was constructively dismissed by the other partners of Salisbury practice Wilsons.

The Court of Appeal said that though “the factual background is likely to be contentious in due course”, it would treat them as true for the purposes of this decision.

The court said that Mr Roberts was the firm’s managing partner, and held both compliance officer roles. In July 2014, the board received a complaint of bullying against then senior partner Christopher Nisbet.

Mr Roberts investigated the complaint and his report, which he first shared with the firm’s board, was to be discussed at a partners meeting in October 2014.

However, a majority of the partners delivered a notice stating that they would not attend the meeting and the following month demanded that Mr Roberts resign as managing partner.

They then voted to remove him, and later also removed him from the compliance officer positions before he was able to submit his report.

In January 2015, Mr Roberts wrote to the partners, saying that they had repudiated the members’ agreement, and that he accepted the repudiatory breaches. He gave them one month’s notice of termination of his membership.

The partners denied there had been any breaches and rejected the notice. Mr Roberts in turn rejected this and confirmed that his membership would cease on 5 February.

He did not return to work and was expelled from the firm on 30 April.

In the meantime, Mr Roberts had issued his claim for “compensation for detriment suffered by a worker as a result of the making of protected disclosures” – that is, whistleblowing. He sought £3.4m, mainly future loss of earnings.

At a preliminary hearing, an employment tribunal held that Mr Roberts’ claim of constructive termination of his membership should be struck out as having no reasonable prospect of success.

There was no concept of “constructive termination” in the context of LLP law, it found, and so there could be no claim for post-termination losses when they were suffered as a result of an expulsion from the LLP which was not itself the subject of any plea of unlawfulness.

Mrs Justice Simler, president of the Employment Appeal Tribunal, overturned this decision on appeal.

She held that an LLP member who was a worker – which it was accepted covered Mr Roberts – and protected by the whistleblowing provisions in the Employments Right Act 1996 could claim compensation for post-termination financial losses even if lawfully expelled as a member.

This was provided that “he demonstrates that such losses are attributable to the earlier unlawful detrimental treatment”.

Simler J held that this was a question of fact and judgment to be assessed and determined on the evidence. The tribunal was therefore not entitled to strike out that element of the claim without hearing evidence or making any findings of fact.

On appeal by Wilsons, Lord Justice Singh observed that, for the purpose of exercising the power to strike out, the employment tribunal correctly appreciated that the facts had to be assumed to be true in the claimant’s favour.

“Once that is done, it seems to me inevitable that the claim should not have been struck out. This is because there clearly are matters of fact which need to be explored and that can only be done after the evidence has been heard by the ET at a substantive hearing.”

Lady Justice Hallett and Lord Justice Longmore agreed.



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