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Arbitration Clause Offends Contracting Out Provision

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[Thanks to Keira Gore of Outer Temple Chambers for preparing this case summary]

The High Court (Slade J) has given judgment in Clyde & Co LLP v van Winkelhof concerning the enforceability of arbitration clauses in employment contracts. 

Ms van Winkelhof was a partner at Clyde & Co. She brought discrimination and whistleblowing claims in the employment tribunal after she was expelled from the partnership. Clyde & Co applied for a mandatory injunction in the High Court requiring Ms van Winkelhof to apply for, or consent to, a stay of her employment claims pending compliance with the Dispute Resolution procedure set out in her Members' Agreement. This procedure gave Clyde & Co an unfettered right to refer Ms van Winkelhof's complaints to arbitration, which would be a 'final resolution' of her complaint and therefore prevent the continuation of her claims before the ET.

The High Court held that the provision for binding arbitration was void by operation of s.203 Employment Rights Act 1996. Further, on its proper construction s.144(1) Equality Act 2010 rendered unenforceable an agreement to preclude or limit the continuation of sex discrimination proceedings unless reached in accordance with section 144(4). Accordingly Clyde & Co's application for an injunction was dismissed.