Can charity trustees be protected as whistleblowers?
Yes, potentially, said the recent Employment Appeal Tribunal (EAT) decision of MacLennan v British Psychological Society [2024] EAT 166.
Background
Mr Nigel MacLennan (the Claimant), a psychologist and charity trustee, was elected to the role of President-Elect of the British Psychological Society (the Respondent). When he reported serious concerns of corporate governance failings to the Charity Commission, he believed this triggered a disciplinary process, accusing him of persistent bullying – allegations which he denied – ultimately leading to his expulsion from the British Psychological Society.
Mr MacLennan brought a whistleblowing claim against the Society in which the central issue was whether a charity trustee is, or should be treated as, a worker when seeking protections as a whistleblower.
The Employment Tribunal (ET) dismissed the claim, ruling that it had no jurisdiction to hear his complaints of detriment as a result of making public interest disclosures because he was not a “worker”, and as such was not protected by the relevant whistleblowing legislation.
Mr MacLennan appealed the decision to the EAT, arguing that he should be treated as a worker and therefore protected from reprisals for blowing the whistle.
Applicable Law
Section 47B of the Employment Rights Act 1996 (ERA) which provides: 47B:
“A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.”
Section 230 (3) of ERA …. ‘worker status’:
"an individual who has entered into or works under (or, where the employment has ceased, worked under) -
(a) a contract of employment; or
(b) any other contract, whether express or 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." (Often referred to as a limb B worker).
The decision
The EAT upheld two grounds of the appeal. It found that the ET had adopted too narrow a view in excluding Mr MacLennan from whistleblowing protection. Specifically, the ET focused too heavily on whether a charity trustee is a volunteer, without conducting a broader assessment to determine if the his role was analogous to that of an employee or limb B worker, or whether being a charity trustee, president, or president-elect could constitute an ‘other status’.
The EAT further ruled that the ET should consider whether this was in breach of his Article 10 right to freedom of expression, when read together with Article 14, the right not to be discriminated against.
The EAT stated that there “was a strong argument that being a charity trustee, President-Elect and/or President is akin to an occupational status”. It found that the ET had focused almost entirely on the absence of remuneration and Mr MacLennan being a volunteer. Whilst these are relevant considerations, the EAT directed they should not be determinative, and directed additional factors should be assessed such as the type of role undertaken, the level of responsibility, duties performed, the likelihood of becoming aware of wrongdoing, the importance of making disclosures in the public interest, vulnerability to retaliation (including risk to livelihood or reputation), the availability of reporting mechanisms for wrongdoing, and any other relevant distinctions between the office holders and employees or workers.
The EAT also upheld the appeal ground that workers should be protected from whistleblowing detriment where a disclosure is made before employment commences.
The EAT remitted the claims back to the ET for reconsideration, while strongly implying that it viewed Mr MacLennan’s role as meeting the criteria for worker status. It noted that “The nature of the role, responsibilities and regulatory regime applied to charity trustees, is strongly suggestive of” worker status.
Comment
Katherine Irvine, Associate in our Employment team, comments:
“This decision is highly significant for the charity sector, illustrated by the fact that both Protect, the leading whistleblowing charity, and the Charity Commission, were given permission by the EAT to intervene and make submissions. Additionally, the Secretary of State will be invited to intervene in the remitted ET proceedings. This case could pave the way for protection to be extended to charity trustees, empowering them to speak out against misconduct within the organisations they oversee.
“The case also underscores the complexities surrounding worker status. While the outcome of the grounds remitted back to the ET remains uncertain, the EAT’s pointed remarks strongly suggest that Mr MacLennan will be found to have a status of ‘worker’, or hold an analogous status, thereby qualifying for whistleblowing protection.
“Charities should remain mindful of this ruling when trustees - or individuals applying for trustee roles - raise concerns about the charity’s operations. It is essential to carefully assess whether these concerns constitute a public interest disclosure (whistleblowing) and respond appropriately.
“Relationships between the trustee, fellow trustees and others within the charity should remain measured and professional, to prevent potential claims of detrimental treatment arising from the disclosure. However, if the trustee’s own conduct is an issue, charities cannot avoid taking action.
“Trustee misconduct can significantly disrupt a charity, which depends heavily on the time and expertise of all its trustees – resources which could be jeopardised if one trustee behaves inappropriately.
“When addressing such conduct concerns, especially in the context of whistleblowing, it is crucial to handle interactions with the trustee carefully. Every step in the process should be thoroughly documented, with transparent, evidence-based conclusions supported by relevant documentation. Additionally, it is essential to keep the whistleblowing entirely separate from any inquiry into the trustee’s conduct.
“Whistleblowing cases can be highly complex, particularly when conduct issues are involved. We strongly recommend seeking legal advice early in the process to ensure proper handling of the matter.”
Published 10 January 2025
