The introduction of whistleblowing protection for trustees?
In the recent case of MacLennan v British Psychological Society 2024, the Employment Appeal Tribunal considered whether a charity trustee should be protected under the whistleblowing provisions of the Employment Rights Act 1996.
Anna Glover, paralegal in our charities and education team, examines the facts behind the case, details the separate tribunal rulings and discusses the case’s potential ramifications.
The facts
Dr MacLennan was a trustee and president-elect of the British Psychological Society (BPS), a charity that promotes psychology and its impact on individuals and society and is the representative body for UK psychologists.
During his time at the charity, Dr MacLennan made several complaints concerning the alleged mismanagement of BPS. Dr MacLennan claimed that these complaints constituted protected disclosures (i.e. a whistleblowing disclosure of malpractice by their employers or third parties).
The relationship between Dr MacLennan and BPS declined and, following an investigation, he was expelled from his membership in May 2021; his roles as trustee and president-elect were also terminated.
Dr MacLennan brought a claim to an employment tribunal, complaining that these actions amounted to whistleblowing detriment contrary to Section 47B of the Employment Rights Act 1996.
In his claim, Dr MacLennan contended that trustees should be regarded as workers and therefore should be granted the same whistleblowing protections.
The Employment Tribunal decision
There was no written contract in place, so the tribunal considered whether there was an implied contractual relationship for Dr MacLennan to be deemed a “worker”.
The tribunal considered the voluntary nature of the role and the broad application of BPS’s policies and concluded that there had been no intention to create a legal working relationship. As a result, the tribunal dismissed Dr MacLennan’s claim on the basis that he was not a worker of BPS.
Dr MacLennan appealed against this decision to the Employment Appeal Tribunal (EAT), arguing that the tribunal had erred in its decision.
Dr MacLennan also argued that he was entitled to whistleblowing protection under Articles 10 (freedom of expression) and 14 (right not to be discriminated against) of the European Convention of Human Rights, regardless of the absence of a contract.
The Employment Appeal Tribunal decision
The EAT upheld the tribunal’s finding that Dr MacLennan was not a “worker”. The EAT ruled that, although he held a significant amount of responsibility, there was no contractual relationship in place, nor was there any intention to enter one.
However, Dr MacLennan contended that Articles 10 and 14 of the European Convention of Human Rights provided grounds for whistleblowing protection. In order to determine this, the EAT applied the test from Gilham v Ministry of Justice (2019):
- Do the facts fall within the ambit of one of the Convention rights?
- Has the claimant been treated less favourably than others in an analogous situation?
- Is the reason for that less favourable treatment one of the listed grounds in Article 14 or some “other status”?
- Is that difference without reasonable justification — put the other way round, is it a proportionate means of achieving a legitimate aim?
The EAT found that the facts do fall within the ambit of the Convention Rights, namely Article 14. The right to freedom of expression, which can include the right to blow the whistle, is enshrined in Article 14.
However, the EAT ruled that the tribunal had not conducted the broad-brush assessment necessary to decide whether there was an "analogous situation” between the claimant and employees/workers, or whether being a charity trustee and President-Elect was some “other status”.
The EAT found that instead of considering the wider circumstances, the tribunal had focussed almost entirely on Dr MacLennan’s unpaid, voluntary status and not the wider factors for example:
- The type of role undertaken and level of responsibility.
- The duties of the role.
- The likelihood that the person would 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 or worker.
There was a strong argument that being a charity trustee was akin to an occupational status. The nature of the role, responsibilities and regulatory regime that applied to charity trustees strongly suggested such a status.
The EAT also found that the tribunal had not considered the question of justification.
The EAT therefore remitted the case to the tribunal to reconsider these points.
Commentary
Trustees have a significant amount of responsibility. They owe fiduciary duties to deliver the charity’s purpose and must ensure that the charity is properly managed.
According to the Charity Commission's guidance, payment of any kind for acting as a trustee is the exception rather than the rule but given the high degree of responsibility and the importance of the role to society, it would arguably seem appropriate that trustees are protected from repercussions and not discouraged from reporting concerns or suspicions where they discover them.
The EU Whistleblowing Directive (which does not apply to the UK) expressly covers
"shareholders and persons belonging to the administrative, management or supervisory body of an undertaking, including non-executive members, as well as volunteers and paid or unpaid trainees".
If the employment tribunal determines that the whistleblowing provisions of the Employment Rights Act 1996 extend to charity trustees, this could significantly increase the protection available to trustees in line with their responsibilities.
This would also increase charities' potential liability, as they would have to take care to effectively manage whistleblowing disclosures and ensure they have the appropriate policies and procedures in place.
The government will undoubtedly consider this as part of its planned reform of the whistleblower protection regime.
What are the potential implications?
Prior to this ruling, the consensus was that trustees had no such protection, (which applies to individuals working under a contract of employment (employees) or any other contract whereby the individual undertakes to do or perform personally any work or services for another party who is not a client or customer of the individual (a worker)), as there was no “contract”.
However, this case may alter that position and significantly change trustee protections.
For more information, please contact Anna Glover using [email protected] or 0191 211 7847.