Charity trustees could gain protection from whistleblowing detriment after a landmark case at the Employment Appeal Tribunal (EAT).
Dr Nigel MacLennan was a trustee at the British Psychological Society (BPS), elected to the role of its president-elect. He had campaigned to be voted into this position after expressing concerns about the way the charity was run, which he hoped he could address as president-elect.
MacLennan was told he had been elected into the position in May 2020, and went on to make four protected disclosures in June of that year. He formally took up the role of president-elect of BPS in June 2020, and then made a further nine protected disclosures that year.
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An independent investigation by a barrister was commissioned, and in May 2021, MacLennan was expelled from his membership, terminating his role as trustee and president-elect.
He took the charity to tribunal in 2023, contending that he should be treated as a worker and therefore protected against being subject to detriment on the grounds of whistleblowing.
He told the tribunal that he had uncovered “serious concerns of corporate governance failings within the BPS, including potentially illegal practices”.
He said his expulsion had caused “profound damage to his reputation and career” and negatively impacted his mental health.
The initial tribunal held that it did not have jurisdiction on this, however, and would therefore not be within the scope of its judgment to determine if his dismissal was fair.
However, Dr MacLennan appealed, arguing that he should be treated as a worker for relevant purposes under the European Convention on Human Rights, including his right to freedom of expression.
At the EAT, the judge upheld aspects of his appeal that he should be treated as a worker, and has now sent the case back to the tribunal to rule whether he was fairly or unfairly dismissed.
At the EAT hearing in October, Judge James Tayler said: “I consider that the employment tribunal did not adequately consider the relevant circumstances and conduct the broad-brush assessment necessary to decide whether there was an ‘analogous situation’ between the claimant and employees or limb B workers [casual or gig workers] and whether being a charity trustee, president-elect and/or president is an ‘other status’.”
Judge Tayler said the initial tribunal focused “almost entirely on lack of remuneration” and the fact the claimant was a volunteer. “These were relevant factors, but not determinative,” he added.
He said the tribunal should have considered a list of other factors in deciding whether it was within its jurisdiction:
- the type of role undertaken and level of responsibility
- the duties of the role
- the likelihood that the person will become aware of wrongdoing
- the importance of the person making disclosures of wrongdoing in the public interest
- the vulnerability of the person to retaliation for making a protected disclosure
including the extent to which livelihood or reputation might be at risk - the availability of alternative routes to making disclosures of wrongdoing and any alternative protections
- any other relevant distinction between the office holder and an employee and/or limb B worker.
Dr MacLennan was supported by whistleblowing charity Protect to appeal the first tribunal.
Paul Daniels, partner at Keystone Law, the solicitors representing Protect, said: “In the crucial part of the judgment, the judge found that there was a strong argument that being a charity trustee, president-elect and/or president is akin to an occupational status (which would be likely to unlock the door to protection).
“The judge also commented that the nature of the role, responsibilities and regulatory regime to charity trustees is strongly suggestive of such a status.
“Although there are other legal issues to factor in before protection is formally granted, this is a strong indication that many UK trustees will be protected going forward.
“It was also usefully held by the EAT that a worker is protected from being subject to a detriment by his current employer for making a protected disclosure to that employer prior to the commencement of the employment. This will extend UK whistleblowing laws more widely.”
Elizabeth Gardiner, chief executive of Protect, welcomed the ruling as a “victory for common sense”. She said: “Whistleblowing is a key instrument of good governance, but all too often it comes with a high cost for those who blow the whistle.
“Confronting senior executives and standing up against the pack is fraught with dangers and organisations can often become hostile to those challenging their decisions. In many cases, it’s the whistleblower who faces the heat rather than those behind the wrongdoing.
“As influential and critical members of a charity, trustees are essential in detecting and deterring wrongdoing such as fraud, safeguarding issues and mismanagement. This ruling should mean that many more trustees will have the confidence and legal protection to call out wrongdoing when they see it.”
Gardiner added that it was “grossly unfair” to expect individual whistleblowers to bring cases through the courts system as this involves great financial and mental health costs.
“Our legislation should be updated so that trustees – along with the many more thousands of people who currently sit outside the parameters of whistleblowing law, including self-employed contractors, job applicants and many others– get the protections they need and deserve,” she said.
Protect and a number of MPs are campaigning for an amendment to the Employment Rights Bill that would force companies to investigate a broader range of complaints outside of the remit of the Public Interest Disclosure Act.
A BPS spokesperson said: “This is a complex case with potentially far-reaching implications for the charity sector. It has arisen following two independent investigations which upheld allegations of bullying which resulted in Dr MacLennan being expelled from the British Psychological Society.
“Of the four grounds for appeal in this case, the EAT has dismissed two grounds and confirmed that Dr MacLennan did not have the status of a worker under a contract and so is unable to bring a whistleblowing claim on that basis. The EAT has referred the remaining two grounds back to the original tribunal for further consideration. As this is an ongoing legal process, we do not believe it is appropriate for either party to comment further.”
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