Clyde & Co Llp & Anor v Winkelhof

The Court of Appeal (Aikens LJ) granted a renewed application for permission to appeal against Slade J's judgment of 21 March 2011. The central legal issue was the effectiveness of clause 41 of the parties' agreement, which set out a three-stage dispute resolution procedure (management board reference, alternative dispute resolution, and arbitration), in the light of statutory protections for discrimination and whistleblowing. The judge below had held that clause 41 fell foul of section 144 of the Equality Act and section 203 of the Employment Rights Act 1996, and had dismissed the claimant's claim. The Court considered that the validity of the first two stages raised matters of public importance with reasonable prospects of success, and accordingly granted permission to appeal; the appellants accepted that the third stage (the arbitration provision) would be incompatible with the relevant statutory provisions.

This is a renewed application for permission to appeal from the High Court (Queen's Bench Division) where Slade J had dismissed the claim on 21 March 2011 and made a costs order for the respondents. The respondent had been expelled from a partnership and had brought claims in the Employment Tribunal for discrimination on grounds of sex and pregnancy and for discriminatory acts including expulsion after making alleged "protected disclosures" within the meaning of section 43A of the Employment Rights Act 1996.

The parties' agreement contained clause 41, which provided a three-stage dispute resolution process: (1) reference to a management board, (2) alternative dispute resolution, and (3) arbitration. Slade J ruled that the whole clause was incompatible with section 144 of the Equality Act and section 203 of the Employment Rights Act 1996. She also found that the claimants' attempt to obtain an injunction from the High Court to restrain the respondent's Employment Tribunal proceedings was unfounded and stated she would have exercised her discretion against the claimants in any event.

The Court of Appeal (Aikens LJ) granted permission to appeal. The court considered that the question whether the first two stages of clause 41 were inconsistent with the statutory provisions was of public importance and that the appellants had reasonable prospects of success on those arguments. It was accepted by the appellants' counsel that the third stage (arbitration proper) would be incompatible with the statutory protections; accordingly permission to appeal was granted on all three grounds so that the Court could consider construction, enforceability and the exercise of the judge's discretion.

The application for permission to appeal was granted. The Court considered that the validity of the first two stages of clause 41 raised issues of public importance and there were reasonable prospects of success on those points; the appellants accepted that the arbitration stage would be incompatible with the relevant statutory provisions, and the Court granted permission to appeal on all three grounds to permit consideration of construction, enforceability and the judge’s exercise of discretion.

On appeal from the High Court (Queen's Bench Division) (Mrs Justice Slade DBE). Slade J's judgment dated 21 March 2011 dismissed the claimant's claim and made a costs order in favour of the respondents.