Clyde & Co Llp & Anor v Winkelhof

Lord Justice Aikens:

1. This is a renewed application for permission to appeal the judgement of Slade J dated 21 March 2011. In her judgement Slade J dismissed the claimant’s claim and made a costs order in favour of the respondents.

2. The issue between the parties is the effectiveness of clause 41 of an agreement between the respondent on the one side and the first claimant, which is a firm of very well known city solicitors and which is a limited liability partnership, and the second claimant who is a senior equity partner of the first claimant on the other. Differences arose between the parties and the respondent was expelled from the partnership. She has brought claims in the Employment Tribunal for discrimination on grounds of sex and pregnancy and she has also claimed that she has been subject to a number of discriminatory acts, including being expelled from the partnership because in November 2010 she had made a number of “protected disclosures”, within the meaning of section 43 A of the Employment Rights Act 1996 .

3. Clause 41 of the agreement has a series of provisions for dealing with disputes. The clause envisages, in effect, three possible stages. The first is a reference to a management board, the second is ADR and the third is the possibility of arbitration.

4. The judge ruled that the whole of the clause fell foul of section 144 of the Equality Act and section 203 of the Employment Rights Act 1996 . The judge also found that the procedure that had been adopted by the claimants, which was to seek from the High Court an injunction to make the respondent stay the proceedings of the employment tribunal, was ill founded. The judge also said that she would have exercised her discretion against the claimants in any event.

5. It seems to me that the question of whether or not the first two stages in clause 41 fall foul of the relevant statutory provisions is a matter of public importance and that also there are reasonable prospects of success on the arguments of the applicants - now appellants - in respect of the those two parts.

6. It is accepted by Mr Quinn, who appears on behalf of the appellants this morning, that if the third section were to be triggered by Clyde & Co then that would fall foul of the statutory provisions in the Employment Act and Equality Act preventing such procedures from being activated. It seems to me that if the appellants are right in their argument of the construction of the first two parts of clause 41 then the question of how that is to be “enforced”, as it were, is a matter which should be considered by this Court. Then in the light of the answer to that, the question of the exercise of the judge’s discretion may need to be considered also.

7. For those reasons I grant permission to appeal on all three grounds. However Mr Quinn has undertaken to ensure that ground one is amended so as to reflect the fact that he accepts that if the third part of clause 41, ie the arbitration provision proper, were to be triggered then that would fall foul of the relevant statutory provisions. Order : Application granted