Whistleblowing protection | charity trustees

The recent appeal decision in MacLennan v British Psychological Society has provided an important update to the future position of charity trustees in whistleblowing claims. The Employment Appeal Tribunal (‘EAT’) have concluded that the decision to preclude charity trustees from bringing whistleblowing claims on the basis that they are not a ‘worker’ is wrong and accordingly have upheld MacLennan’s appeal.

Whilst McLennan’s case has been sent back to the Tribunal for further consideration/action, the EAT’s decision has opened the door for trustees who are looking to blow the whistle. In light of this, charitable organisations should have this and the Tribunal’s upcoming decision on their radar.

Recap on whistleblowing

Whistleblowing refers to the action that an employee/worker may take to report their employer’s wrongdoing, such as making a disclosure in the public interest. The Employment Rights Act 1996 (the ‘Act’) protects the whistleblower from being treated to their detriment or being dismissed as a consequence of ‘blowing the whistle’. Until now, it was thought that only employees and workers were able to claim whistleblowing protection under the Act.

Basis for MacLennan’s claim

MacLennan was a trustee of BPS (a registered charity). He made a series of complaints and disclosures to the Charity Commission, during which he raised concerns about the way the charity was run. Following this his role as a trustee and position as president-elect of BPS were terminated. MacLennan brought a claim against the charity and sought to rely on whistleblowing detriment under the Act.

The Act

The Act protects a worker from being subject to any detriment, or any deliberate failure, by their employer on the grounds that they have blown the whistle.

Crucially, the Act seeks to protect a ‘worker’, as defined, when making a protected disclosure.

Who is a ‘worker’?

Section 230(3) of the Act defines a worker as an individual who has entered into or works under (a) a contract of employment or (b) any other contract (expressed or implied) where the individual undertakes to perform work/services.

The key question for the Tribunal in MacLennan, therefore, was whether a charity trustee fell within the definition of a worker.

is a charity trustee a worker?

The EAT agreed with the Tribunal’s decision that a charity trustee does not fit into the strict definition of a ‘worker’ under the Act. MacLennan did not have a contract, nor did he enter into a contractual relationship with the charity. The absence of remuneration between BPS and MacLennan was a significant factor pointing against an intention between the parties to create a contractual relationship.

However, the EAT disagreed with the Tribunal’s decision that the definition of ‘worker’ could not be read purposively in line with the trustee’s rights under the ECHR (particularly Articles 14 and 10). By ignoring this, the Tribunal had failed to apply the ‘broad-brush’ approach that case law had adopted. The Tribunal had placed too much emphasis on the absence of remuneration in MacLennan’s role and volunteer status, which were relevant but not determinative. The EAT viewed that there was a strong argument that a charity trustee is akin to an occupational status, given the nature of the role, the responsibilities and the regulatory regime.

Whistleblowing protection for charity trustees?

The EAT’s application of the ‘broad-brush’ approach suggests that charity trustees may, when read purposively, be akin to an occupational status which would enable them to rely on whistleblowing detriment under the Act. Depending on the Tribunal’s next course of action, we could see a change in position where charity trustees can rely on the whistleblowing protections afforded to ‘workers’ under the Act due to their occupational status being akin to ‘workers’.

What next?

Whilst we await further updates, the EAT’s decision in MacLennan presents a real possibility that charity trustees will gain whistleblowing protection under the Act. We will continue to provide updates as and when more information is released.

In the meantime, charitable organisations should ensure that they have appropriate processes in place to investigate instances of whistleblowing – including disclosures made by the trustees.

Your organisation may have a whistleblowing policy in place already. However, this should be reviewed and revised as appropriate in line with the Tribunal’s upcoming decision.

If you have any questions about this blog, or any other employment matters, please do not hesitate to contact a member of the Employment team.