A tribunal appeal has raised the question of whether a charity trustee “is or should be treated as a worker” when seeking to be protected as a whistleblower.
Yesterday, the Employment Appeal Tribunal (EAT) published its judgment in the case involving Nigel MacLennan and the British Psychological Society (BPS).
MacLennan was a trustee and president-elect at BPS when he uncovered and reported “serious concerns of corporate governance failings” there to the Charity Commission.
After making his disclosures, he was subjected to a disciplinary process and expelled from BPS in May 2021 following allegations of “persistent bullying”, which he denied.
Last year, an Employment Tribunal (ET) ruled that MacLennan was not a worker at BPS and had no jurisdiction to hear his claims around detriment for making protected disclosures.
MacLennan appealed the decision, arguing that he should be treated as a worker and protected from reprisals for blowing the whistle under articles 10 and 14 of the European Convention on Human Rights (ECHR).
EAT judge James Tayler found “there was a strong argument that being a charity trustee, president-elect and/or president is akin to an occupational status” and ruled that the case should be sent back to the ET to consider the matter further.
“The nature of the role, responsibilities and regulatory regime applied to charity trustees is strongly suggestive of a status,” Tayler said.
Case is a ‘matter of considerable public importance’
Tayler confirmed that MacLennan was not a worker at BPS but said the ET 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; or whether being a charity trustee, president-elect and/or president is an ‘other status’”.
“I consider that the ET didn’t adopt a broad-brush approach to the question of whether the claimant was in an analogous situation to an employee or limb B worker or whether holding an office as a charity trustee, being president-elect and/or president of the respondent was some other status,” he said.
“The broad-brush approach requires consideration of the relevant surrounding circumstances. The ET appears to have focused almost entirely on the lack of remuneration and the linked fact that the claimant was a volunteer. These were relevant factors, but not determinative.”
Tayler accepted the point made by MacLennan and the Charity Commission that the case “is a matter of considerable public importance”.
Ruling opens door to potential protection for trustees
Byfield Consultancy, a specialist litigation public relations firm, said the “landmark” claim opens the door to potential protection for charity trustees “who may need to blow the whistle on corporate governance failures within the charities they oversee”.
“If he is successful, the case could extend the same protections that workers and employees enjoy under whistleblowing legislation to the many others who play a vital role as insiders in a position to speak out on wrongdoing,” it said.
MacLennan said he was “extremely pleased” that the EAT found in his favour, adding that the ruling “will make it much harder for the ET in my case – and other ETs deciding similar cases – to deny whistleblower protection to charity trustees who are forced to speak out against wrongdoing”.
“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,” he said.
“Yet in disclosing these failures, trustees aren’t currently 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’s a serious anomaly that needs to be fixed here if trustees are to be effective in undertaking the essential scrutiny of the organisations they’re obliged to protect, without fear of life-ruining reprisal.”
Legal implications and wider impact
Whistleblowing charity Protect was allowed to intervene on behalf of MacLennan at the appeal stage
Paul Daniels, partner at Keystone Law, the solicitors representing Protect, said that “although there are other legal issues to factor in before protection is formally granted”, there 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.”
Protect chief executive Elizabeth Gardiner called the judgment “a victory for common sense”, adding: “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.”
BPS: ‘This is a complex case’
In response, 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 MacLennan being expelled from the BPS.
“Of the four grounds for appeal in this case, the EAT has dismissed two grounds and confirmed that MacLennan didn’t 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 don’t believe it’s appropriate for either party to comment further.”
A spokesperson for the Charity Commission told Civil Society it intends “to continue assisting the court as an intervener on the ECHR point”.
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