A court case this week will assess whether a former trustee of the British Psychological Society (BPS) had worker status when he was dismissed, which lawyers have said could result in whistleblowing protections being extended to cover charity trustees.
Nigel MacLennan was a trustee and president-elect of BPS when he raised concerns about the charity’s governance and finances with the Charity Commission.
MacLennan was then expelled from the charity in May 2021 following allegations of “persistent bullying”, which he denied.
An employment tribunal ruled last year that he was not a worker of BPS, and therefore had no jurisdiction to hear claims around detriment for making protected disclosures.
But this week an employment appeal tribunal (EAT) will review the decision.
Whistleblowing charity Protect said it will call on the court to consider whether trustees can claim the protection of whistleblowing law.
The Charity Commission also confirmed that it would make submissions to the court after being granted permission to intervene in the case.
MacLennan: ‘Financial and career ruin’
MacLennan said: “Charity trustees and trustees of other vital public organisations have a duty to report concerns of serious failings in the organisations they oversee and can face legal, personal and professional liabilities if they fail to do so.
“Yet in disclosing these failures, trustees are not provided any legal protections and can face financial and career ruin, on top of immense mental and emotional distress when they do so.
“This is what happened to me and there is a serious anomaly that needs to be fixed here if trustees are to be effective in undertaking the essential scrutiny of the organisations they are obliged to protect, without fear of life-ruining reprisal.
“If the current position stays as it is, trustees will be deterred from taking up vital public offices as they find themselves in the impossible position of having a legal duty to report wrongdoing, but with no legal protections for doing so.”
MacLennan is being represented pro bono by Chris Milsom at Cloisters Chambers and Oliver Spratt at Morrison Foerster.
BPS statement
BPS was previously led by an elected president, but the charity has since introduced a role of chair of its board of trustees.
A spokesperson for BPS said: “In 2021, following two independent investigations which upheld allegations of bullying, MacLennan was expelled from BPS.
“In early 2023, an employment tribunal concluded that MacLennan was not at any time a worker of BPS and the tribunal therefore had no jurisdiction to hear the claims of detriment for making protected disclosures.
“The claim was therefore dismissed. As MacLennan is now appealing this judgment, we believe that it would not be appropriate for either party to comment further at this stage.”
Protect: Trustees ‘need to feel free and able to call out wrongdoing’
Every year, Protect hears from around 50 charity trustees who raise concerns about the lack of safeguarding, poor governance and financial wrongdoing in charities.
The charity has submitted evidence to EAT about the impact of whistleblowing on trustees and is arguing that trustees should have rights to receive and impart information in accordance with Article 10 (freedom of expression) of the European Convention on Human Rights.
Sybille Raphael, legal director of Protect, said: “Trustees serve an essential and valuable role in ensuring charities comply with the law and operate under strict financial and governance regulations.
“As the eyes and ears of a charity, they are key to detecting and deterring wrongdoing such as fraud, safeguarding issues and mismanagement. They need to feel free and able to call out wrongdoing when they see it.
“But bringing uncomfortable truths to light is not always welcomed – organisations often become defensive, shooting the messenger rather than addressing the issues raised.
“This is why the law needs to recognise and protect trustees as whistleblowers. If we want trustees to come forward, we need to ensure that they have a remedy if they suffer for speaking up.
“We hope that this case will take a step towards expanding whistleblowing rights to all those in the workplace who need protection.”
Related Articles
