Presentation on theme: "Partnership Law for Employment Lawyers"— Presentation transcript:
1Partnership Law for Employment Lawyers Clare MurrayCM Murray LLP
2Partnership SpoilersGeneral Partnerships and LLPs covered by separate bodies of lawIn the absence of a partnership or LLP agreement certain default rules regulate individuals’ rights & dutiesFiduciary duties always apply to general partners but do not automatically apply to LLP Members or LLPsPartner status requires assessment of parties’ intention and factual assessment against certain factorsThere is no minimum threshold requirement for management involvement or profit sharing to be partner.
3Partnership Spoilers LLP Members are not “workers” Partner restrictive covenants are far more likely to be enforceable than employee restrictionsArbitration clauses in Partnership Agreements are not effective to override tribunal jurisdictionThe concept of constructive dismissal is not available to partners in general partnerships, and is untested (and risky) in relation to LLPs
4General Partnerships Overview General Partnerships are regulated by:Partnership Act 1890Express partnership agreement“Partnership is the relation which subsists between persons carrying on a business in common with a view of profit” s1(1) PANo separate corporate entity, just a collection of two or more individuals in business together to make a profit
5General Partners’ Rights & Duties Each partner:acts as agent for firm & other partnersowes fiduciary duties to the othershas joint and several personal liabilitydoes not assume responsibility for pre-admission liabilitiesBut an exiting partner remains responsible:for liabilities incurred whilst a partner (subject to certain rights of indemnity)for post-retirement liabilities until notice of change given to third parties who deal with firm, & in London Gazette
6General Partners’ Rights & Duties Duty of Good Faith is owed by each partner to the others in all partnership dealings and transactionsCore fiduciary obligations of a partner areloyalty (fidelity) and good faith, incorporating:The “Non-Conflict Duty” andThe “Not to Profit Duty”.“If fiduciary relation means anything I cannot conceive a stronger case of fiduciary relation that that which exists between partners.” V-C Bacon, Helmore v Smith (1887)
7General Partners’ Rights & Duties Common Law duty of Good faith is reinforced by PA 1890:Each partner is bound to render true accounts and full information of all things affecting the firm to any partner or his legal adviserEach partner is accountable to the firm for any benefit derived without other partners’ consent from any transaction concerning firm, its property, name or business connectionEach partner must not compete without the consent of firm whilst a partner, otherwise he is account for all unlawfully earned profits
8General Partners’ Rights & Duties Default rules which apply, in absence of agreement otherwise:All partners share equally in capital and profits and contribute equally to losses of firmEvery partner can participate in management of firmChanges to nature of business require unanimity; ordinary matters regarding firm business need a majority decision onlyEvery partner is entitled to have full access to, inspect and copy any of the partnership books
9General Partners’ Rights & Duties Right to dissolve a partnership at will by giving notice of dissolution to the other partners; no advance notice required.Partnership at will arises:when no fixed term is agreed for partnership, orit continues beyond expiry of fixed term, with no express new agreement or evidence of continuation on previous termsIn practice they tend to occur where:Partnership is set up without express written agreement; orA new partner is admitted without agreeing to the partnership termsDissolution can trigger winding up of the business
10General Partners’ Rights & Duties Right to petition Court for dissolution of Partnership under s35:Partner is permanently incapable of performing partnership contractPartner is guilty of conduct calculated to prejudicially affect the carrying on of the businessPartner wilfully / persistently commits a breach of partnership agreement, or otherwise conducts himself re partnership business so that it is not reasonably practicable to carry on in business with himThe business can only be carried on at a lossCircumstances have arisen which, in opinion of the Court, render it just and equitable that the partnership be dissolved.
11LLP OverviewAn LLP is a corporate entity with its own separate legal existenceFlexible internal ownership and governance structureLLP usually carries the duties and liabilities, contracts with third parties and usually owns the assets of the businessLLPs are regulated, not by general partnership law (except in limited circumstances), but by:Limited Liability Partnerships Act 2000, Limited Liability Partnerships Regulations 2001, and related LLP regulationsCertain parts of Companies Act 2006 and Insolvency Act 1986 (amongst other legislation)The Members Agreement
12LLP Overview Designated Members: Responsibilities set out in CA and IA Ensure LLP disclosure/compliance obligations are fulfilled e.g.filing of annual accounts,appointing/removing auditors,notification of changes in membership etcIf in default Designated Members may be found guilty ofan offence and liable to a fine.
13LLP Members’ Rights & Duties Default rules which apply in the absence of agreement otherwise, includeAll Members share equally in capital and profits of firmLLP must indemnify each Member regarding payments made and personal liabilities incurred:In the ordinary and proper conduct of businessIn or about anything necessarily done for preservation of LLP property or business.Every Member can participate in the management of the LLPChanges to nature of LLP business require unanimity; differences arising regarding ordinary matters in LLP business need majority decision only
14LLP Members’ Rights & Duties Key Default Rules (cont’d)Every LLP Member is entitled to have full access to, inspect and copy any of the LLP books (Reg 7(7))Every Member must render true accounts and full information of all things affecting LLP to any Member or legal adviser (Reg 7(8))If any Member competes without the consent of the LLP whilst a Member, he must account for all unlawfully earned profitsEach Member is accountable to the LLP for any benefit derived without the LLP consent from any transaction concerning the LLP, or use of its property, name or business connection
15LLP Members’ Rights & Duties Expulsion, Resignation and Dissolution:No majority of Members can expel any Member unless power to do so has been conferred by express agreement (Reg 8)Voluntary retirement:in accordance with express provision or(in absence of agreement), by giving reasonable notice to other Members(NB. Legislation is silent on financial consequences of exit)Right to petition the Court to exercise its power to order winding up:under Court’s just and equitable discretion (s122(1)(e) IA 1986); oron basis LLP is unable to pay its debts (s122(1)(d).
16LLP Members’ Rights & Duties Are fiduciary duties owed between Members, to the LLP and by Senior Management to the LLP?Every Member is the agent of the LLP (s6(1) LLPA)His acts are attributed to and bind the LLP (except in certain circumstances or as otherwise agreed)When does he owe fiduciary duties to the LLP (beyond those set out in the Regulations - not compete without consent and not make secret profit)?
17F&C Alternative Investments (Holdings) Ltd v Barthelemy & Ors (2011) Contractual duty of utmost good faith – analogous to but not same as fiduciary duties.Extent of contractual duty of good faith depends on factual and contractual contextMust have regard to legitimate interests of the LLP, but not obliged to act in interests of the LLP or subordinate/defer own legitimate interests to themContractual duty of good faith embraces:obligation to co-operate in achieving the contractual objectives;Compliance with honest standards of conductCompliance with standards of conduct which are reasonable having regard to the interest of the parties“Dividing line” regarding duty to disclose in contractual duty of good faith
18F&C Alternative Investments (Holdings) Ltd v Barthelemy & Ors (2011) No automatic fiduciary duties owed between LLP Members“Fiduciary duties arise from particular circumstances, where a person assumes responsibility for the management of another’s property or affairs”Therefore where one has assumed to act in relation to the property or affairs of another, he comes under fiduciary duties to that other personThe extent of the duties will depend on the particular case.
19F&C Alternative Investments (Holdings) Ltd v Barthelemy & Ors (2011) No general fiduciary duties automatically owed by Members to LLP beyond statutory duties of no competition without consent & no secret profits.6 LLPA does not mean that members owe fiduciary duties to the LLP in everything they do.Look at “the specific roles and responsibilities arising in the particular context in question in order to assess whether and what fiduciary obligations may arise”None of the Members (in that capacity), had direct control over the affairs and property of the LLP or of each other in a manner which could to give rise to fiduciary duties
20F&C Alternative Investments (Holdings) Ltd v Barthelemy & Ors (2011) Fiduciary obligations of LLP Board Members/ Management etc to LLP?“ask what obligations of a fiduciary character may reasonably be expected to apply in the particular context, where the contract between the parties wil usually provide the major part of the contextual framework in which that questions arises”Consider the precise nature of the relation in question to determine the type of fiduciary oblations which apply.Contractual context may mean the parties could not reasonably expect fiduciary obligations should apply.When assessing Board member decisions, the Court will have regard to what Board Members genuinely thought to be in the best interests of the LLP
21Partner Status – Why status is important A Fixed Share Partner (FS Partner) may in reality be an employee and have employment rights, resulting in the need to adopt formal consultation and grievance proceduresA genuine partner/Member will have rights to seek dissolution and participation in winding up of the businessDetermining whether subject to duty of good faith or mutual trust and confidenceRestrictive covenants more likely to be enforceable against genuine partners than employeesAppropriate assessment for tax and NI
22Partner StatusMeasure the entire business relationship against s.1 PA 1890:“Partnership is the relation which subsists between persons carrying on a business in common with a view of profit”s.1(3) PA 1890:“The receipt...of a share of the profits of the business is prima facie evidence that he is a partner in the business but ..does not of itself make him a partner in the business..”
23Partner Status“..impossible to say …. a salaried partner is or is not necessarily a partner in the true sense. He may or may not be a partner depending on the facts….”“What must be done is to look at the substance of the relationship between the parties … and not..any mere label attached to that relationship.”“One must in every case look at the terms of the relationship to ascertain whether or not it creates a true partnership”Stekel v Ellice  Megarry J
24Range of Factors Sharing in profits and losses v. Guaranteed pay Sharing in liabilities v Indemnity against liabilities from PartnersCapital Investment v No capital requirementParticipation in management v Subject to controlAbility to hire, fire & sign cheques v No such rightsParticipation in assets on winding up of the Firm v No participationHeld out as a partner, inc name on firm notepaper v Not held out as Partner
25Partner StatusCritical question – did they intend to create a partnership rather than another relationship?All features of the agreement have to be considered to establish that intentionThe absence of profit sharing, capital or dominant management rights does not undermine or negate other evidence of partnership
26LLP Members S 4(4) Limited Liability Partnership Act 2000 “A member of a limited liability partnership shall not be regarded for any purpose as employed by the limited liability partnership unless, if he and the other members were partners in a partnership, he would be regarded for that purpose as employed by the partnership”On the facts, would he have been regarded as a partner?If not, on the facts would he have been an employee ?
27Tiffin v Lester Aldridge LLP (2012) Solicitor employed by LA as an associatePromoted to salaried partnerAppointed to fixed share partner as a stepping stone to equityFixed profit share, plus 5 profit share pointsCapital contribution of £5,000Signatory to bank accountsIssued with P45Tax and NI as self-employedSigned Members Agreement on LLP conversionEntitled to participate in the winding up of the firm in proportion to his capitalCertain voting rights, though not on all matters
28Tiffin v Lester Aldridge LLP (2012) Was served notice by the partnershipClaim to ET for unfair dismissal, breach of contract andredundancy rejected – he was a partner, not employeeAppealed to EAT on basis he believed he was in reality an employee as:He was not involved in management of the firm, as FS Partners’ voting rights were “minimal”His share of profits and capital was too smallThe ET decision placed too much weight on labels rather than reality
29Tiffin v Lester Aldridge LLP (2012) EAT:There is no certain minimum number or types of rights to vote or to participate in management decisions to qualify as a partner“..in many large professional partnership, all but a few of the partners have any right to participate in the overwhelming range of decisions made by the firm and yet they are clearly partners”
30Tiffin v Lester Aldridge LLP (2012) Court of Appeal: He was a Partner, not an employeeNo suggestion by Mr Tiffin that Members’ Agreement was a shamMembers’ Agreement reflected the parties’ intention to set up a partnershipThere is no minimum threshold requirement for managerial involvement or amount of profit shareIn fact FSPs did have a real voice in material aspects of the firm’s management by their (more limited) voting rightsMr Tiffin contributed to the capital of the firm, took a share of the profits and had a voice in the management of the firmHe participated in surplus assets on a winding up
31Key Points to Remember Each case turns on its own facts Written terms not necessarily determinative - court will look at the whole picture and the reality of the relationshipCheck whether written agreement is an accurate reflection of the relationship and intention of the parties, otherwise it runs the risk of being held to be a shamWhen determining partner/employee status, certain key indicators will need to be present, and one factor alone is not determinativeTake tax adviceIf there is doubt about whether an individual is an employee, be cautious and follow objective and fully documented selection and consultation processes before expulsion
32Other Protections for Partners Remember:Partners and LLP Members are covered by discrimination protectionsLLP Members are no longer covered byWhistle blowing protections (Court of Appeal - Clyde & Co & Morris v Bates Van Winkelhof )
33Clyde & Co & Morris v Bates Van Winkelhof ET: Claimant not a worker & could not pursue whistle blowing claimS230 (3) ERA: Worker means an individual who entered into or works/worked under :“a) a contract of employment, orb) any other contract, whether express of implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual”ET: Claimant was in business in her own right, receiving a share of profit for work carried out and did not satisfy limb b) of definitionThe LLP as other party to contract, was a client or customer of the business/profession carried on by her
34Clyde & Co & Morris v Bates Van Winkelhof EAT: ET decision overturned - Claimant was a worker & could pursue whistle blowing claimClaimant was in a subordinate position within the FirmIt was impossible to describe the LLP as her client or customerShe therefore fell within limb b) definition of workerFirm appealed:Claimant was not in a subordinate positionShe could not have been a worker because of s4(4) LLPA regarding employment status or otherwise of Members
35Clyde & Co & Morris v Bates Van Winkelhof Court of Appeal: Claimant not a worker & could not pursue whistle blowing claimA member of a limited liability partnership shall not be regarded for any purpose as employed by the limited liability partnership unless, if he and the other members were partners in a partnership, he would be regarded for that purpose as employed by the partnership”. S4(4) LLPA 2000:CoA: Claimant would have been a partner if this had been a partnershipCourt preferred wider view that “employed by the limited liability partnership” meant both employees and limb b) workersCentral question then - whether gen. partnership partners could be limb b) workersClear authority that such a partner could not be a worker:traditional partnership is not a separate legal entityNo subordinate relationship in a general partnership – service and control lacking
36Partner Restrictive Covenants As with employees, partner restrictive covenants are void unless they are:reasonable in the interests of the partiesreasonable in the interests of the publicnecessary to protect a legitimate business interestno more than is reasonably necessary between the parties to protect that interestBut separate body of law has developed regarding partnership restrictive covenants
37Partner Restrictive Covenants Bridge v Deacons  Judicial Committee of Privy CouncilCapital Partner with 5% interest in business and assets of firmLittle exposure to clients outside IP and TM deptProhibition on acting as a solicitor in HK for 5 years for any client of the firm or any client within 3 years prior to departureOn departure, he received substantial payment (though only nominal amount for good will), set up in competition and acted for prohibited clientsFirm sought injunction to enforce restrictive covenant
38Bridge v Deacons  Bridge argued: Scope unreasonable as it prevented him acting for 90% of firm’s clients with whom he had no connection/dealingsHe received only a nominal amount for goodwill and therefore firm not entitled to protect it by a restrictive covenant5 year duration was unreasonable.
39Bridge v Deacons  Held: Having regard to value of business and defendant’s position, scope and duration were not unreasonable.Firm was a single practice in which all partners had an interest, shared profits and losses, and owned the assets.The restrictive covenant was mutual – all partners were bound by and benefited from it.He had benefit of the goodwill whilst a partner, which firm now sought to protect; transfer of goodwill was not by way of a cash sale but under partnership terms under which he had only paid a nominal amount when he first joined the firm.The partners were of equal bargaining power (and also lawyers!)